in the Interest of V.K.H.H., a Child

                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-21-00072-CV



                         IN THE INTEREST OF V.K.H.H., A CHILD



                           On Appeal from the County Court at Law
                                    Bowie County, Texas
                               Trial Court No. 19D0442-CCL




                          Before Morriss, C.J., Stevens and Carter,* JJ.




__________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                                       ORDER

            Mother1 appeals from the trial court’s order in this suit affecting the parent-child

relationship modifying the previous conservatorship order.2 The new conservatorship order

grants Father the exclusive right to designate the primary residence of the child. Possession of

the child was awarded in accordance with the standard possession order. See TEX. FAM. CODE

ANN. §§ 153.311, 153.313–.316, § 153.312 (Supp.). Mother contends that the trial court abused

its discretion by failing to award her primary custody of the child and further erred by failing to

file requested findings of fact and conclusions of law.

            Following a bench trial, any party may, within twenty days after the judgment is signed,

file a request for findings of fact and conclusions of law. See TEX. R. CIV. P. 296; Ad Villarai,

LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). “The court shall file its

findings of fact and conclusions of law within twenty days after a timely request is filed.” TEX.

R. CIV. P. 297. Should the trial court fail to file findings of fact and conclusions of law within

that time frame,

            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” which shall
            be immediately called to the attention of the court by the clerk.




1
    To protect the child’s identity, we refer to the child’s parents as Mother and Father. See TEX. R. APP. P. 9.9.
2
 The original conservatorship order appointed both parents as joint managing conservators, with Father having the
exclusive right to designate the primary residence of the child within Bowie County, Texas. The original order
granted Father possession of the child (in the absence of mutual agreement), beginning at 8:00 a.m. Monday and
ending at 6:00 p.m. Friday. Mother was awarded possession of the child every weekend, beginning at 6:00 p.m.
Friday and ending the following Monday at 8:00 a.m.
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Id. When timely requested, the trial court must file written findings of fact and conclusions of

law. Isaac v. Burnside, 616 S.W.3d 609, 614 (Tex. App.—Houston [14th Dist.] 2020, pet.

denied).

       “If the court fails to file findings in response to a proper and timely request, the court of

appeals 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)). “[I]f a 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 court of appeals or this Court.’” Id. (second

alteration in original) (quoting Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex.

2014) (per curiam) (citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (per curiam))). “A

trial court’s failure to file findings in response to a timely and 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) (quoting Wagner v. Riske, 178 S.W.2d 117, 120 (1944))).

       In this case, Mother timely filed a written request for findings of fact and conclusions of

law. Mother likewise timely filed her notice of past due findings of fact and conclusions of law.

Despite Mother’s timely filed request and notice, the trial court failed to file findings of fact and

conclusions of law. Mother contends that this failure negatively impacts appellate review due to

the heightened burden of rebutting every presumed finding that could conceivably support the




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judgment. Mother therefore asks that we abate this appeal to the trial court for entry of findings

of fact and conclusions of law.

       “When deciding issues of conservatorship and possession of and access to a child, [a

court’s] primary consideration is the best interest of the child.” Pore v. Ellis, No. 03-20-00550-

CV, 2021 WL 2964261, at *1 (Tex. App.—Austin July 15, 2021, no pet.) (per curiam) (order

and mem. op.) (citing TEX. FAM. CODE ANN.§ 153.002). “Courts have developed best-interest

tests that consider and balance many factors.” Id. (citing Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.

2002); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“listing several non-exclusive factors

for assessing child’s best interest”); Harris v. Tex. Dep’t of Fam. & Protective Servs., 228

S.W.3d 819, 828 (Tex. App.—Austin 2007, no pet.)). “Accordingly, suits affecting the parent-

child relationship are intensely fact-driven.” Id. (citing Lenz, 79 S.W.3d at 19).

       As in Pore, this case presents “disputed facts regarding some events and the parties’

behavior during those events, and the trial court’s order does not reveal how it resolved those

disputes and assessed and balanced the Holley factors that guide the ultimate decisions

underlying the trial court’s order.” Id. at *2. In such a case, “the preferred remedy is for the

appellate court to direct the trial court to file the missing findings.” Ad Villarai, 519 S.W.3d at

136.

       We, therefore, abate this appeal to the trial court for the sole purpose of issuing findings

of fact and conclusions of law supporting its final order in this suit to modify the parent-child

relationship. The trial court’s findings of fact and conclusions of law shall be entered into the




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record of the case and filed with this Court as a supplemental clerk’s record within twenty-one

days of the date of this order.

       All appellate timetables are stayed and will resume on our receipt of the supplemental

record. On receipt of the trial court’s findings of fact and conclusions of law, the Appellant may

request permission to file an amended brief in order to address the trial court’s findings and

conclusions.

       IT IS SO ORDERED.



                                                    BY THE COURT



Date: February 15, 2022




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