• Beth M. Johnson

When Are Findings Useful in Family Law?

Updated: Jan 31

At the end of the trial, appeal may or may not be foremost on your mind, but questioning whether to request findings of fact and conclusions of law (“findings”) should be on your closing checklist in every case due to the short deadlines for making a request.


After a bench trial, a party may ask the court to state in writing its findings. Tex. R. Civ. P. 296. In ordinary cases, a party only has 20 days after the judgment is signed to request findings. Tex. R. Civ. P. 296; Tex. Fam. Code §§ 6.711, 154.130. After the request is made, the court then has 20 days to file findings. Tex. R. Civ. P. 296. However, in most cases, the trial court will not meet this deadline. Once at least 20 days—but not more than 30 days—have elapsed, if the party seeking findings truly wants findings or needs to preserve the issue for appeal, that party must file a notice of past-due findings. Tex. R. Civ. P. 297. Failure to file a notice of past-due findings waives any appellate complaint regarding a lack of findings. In re S.M., 616 S.W.3d 53, 59 (Tex. App.—Tyler 2020, no pet.). Additionally, failure to request specific Family Code findings—regarding property valuation or deviation from child support guidelines—will result in that request being waived even if the request otherwise complied with Rule 296. See In re S.V., No. 05-17-01294-CV, 2019 WL 1529379, at *3 (Tex. App.—Dallas 2019, no pet.) (mem. op.) (child support); Moore v. Moore, 383 S.W.3d 190, 200–01 (Tex. App.—Dallas 2012, pet. denied) (property division).


Some Texas Family Code provisions expressly require orders to contain certain findings. See e.g., Tex. Fam. Code § 261.504 (protective orders). Other provisions may require findings on request of a party. See e.g.,Tex. Fam. Code § 154.130 (deviation from child support guidelines). If findings differ from any recited in a judgment, the findings control on appeal. In re B.P.H., 83 S.W.3d 400, 410 (Tex. App.—Fort Worth 2002, no pet.).


Typically—but not always—the “losing” party requests findings, the “winning” party drafts proposed findings, and then the trial court signs the proposed findings with any edits the court wishes to make. Once findings are signed, the requesting party has ten days to request additional or amended findings. Tex. R. Civ. P. 298. You cannot generically ask for “more” findings; you have to specifically propose what additional findings you believe are appropriate. Andrews v. Key, 13 S.W.640, 641 (Tex. 1890). Due to this quick turnaround, it might be wise to consider what findings the trial court may omit ahead of time.


There are two reasons to request findings: (1) you actually need the findings, or (2) you want to extend the deadline to file a notice of appeal. Tex. R. App. P. 26.1(a)(4). Ordinarily, a notice of appeal must be filed within 30 days of the judgment, but that deadline is extended to 90 days if a request for findings has been filed. Tex. R. App. P. 26.1. This extra time can be helpful if your client is unsure as to whether appeal is the best next step.


If a party timely requests findings, and the trial court fails to file findings, then the appellate court presumes the trial court made all the necessary findings to support the judgment. AD Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017) (per curiam). This presumption is rebuttable if the evidence does not support the presumed findings. Id. However, if rebutting all presumed findings is so burdensome on an appellant that it effectively prevents the appellant from properly presenting a case, the appellate court may abate an appeal and remand the case to the trial court for findings. Id. at 135–36. If the appellant is able to properly present a case, then the trial court’s failure to issue findings is harmless. See e.g., In re J.C.R., No. 13-18-00491-CV, 2020 WL 3396603, at *5 (Tex. App.—Corpus Christi 2020, no pet.) (mem. op.). In other words, to determine whether the lack of timely requested findings is harmful, the appellate court must consider whether the appellant was forced to guess at the reason the trial court ruled against him. See In re A.W.M., No. 04-20-00535-CV, 2021 WL 3516677 (Tex. App.—San Antonio 2021, no pet.) (mem. op.). If there is a single issue, an appellant does not typically need to guess. McLaughlin, Inc. v. Northstar Drilling Techs., Inc., No. 04-02-00511-CV, 2003 WL 21696635, at *1 (Tex. App.—San Antonio 2003, no pet.) (mem. op.). Thus, in a case where there are multiple bases to support a judgment, such as a summary judgment that could have been granted on two or three grounds, findings could help focus the issues on appeal, saving your client time and money.


Oral statements as to findings made by the judge on the record will not be accepted as findings. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984). So, while potentially frustrating, even if the trial judge says something on the record that is a clear misstatement of the law, that statement is not grounds for appeal. See id. Findings recited in a judgment cannot form the basis of a claim on appeal. Frommer v. Frommer, 981 S.W.2d 811, 814 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d). Similarly, a judge’s handwritten notes are not part of the record and cannot be a substitute for findings. Vo v. Vo, No. 04-18-00194-CV, 2018 WL 5808303, at *1 (Tex. App.—San Antonio 2018, no pet.) (mem. op.). However, findings recited in a judgment may be considered in certain circumstances. See e.g., Howe v. Howe, 551 S.W.3d 236, 247 (Tex. App.—El Paso 2018, no pet.) (citing (In re C.A.B., 289 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Bruce v. Bruce, 03-16-00581-CV, 2017 WL 2333298, at *2 (Tex. App.—Austin 2017, no pet.) (mem. op.)).


The trial court must make findings on controlling factual issues. Asai v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.—El Paso 1996, no writ). Further, the court should not make findings on every controverted fact—only those that have some legal significance to the ultimate issue in the case. Zhang v. Capital Plastic Bags, Inc., No. 14-17-00991-CV, 2019 WL 3825533 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (mem. op.). The findings can simply recite form language required by the Texas Family Code. See e.g., Briones v. Carreon, No. 04-02-00933-CV, 2003 WL 2138475, at *1 (Tex. App.—San Antonio 2003, pet. denied) (mem. op.). And, there may be cases when excessive findings violate public policy. See e.g., In re Z.G., No. 02-19-00352-CV, 2021 WL 1229967, at *25 (Tex. App.—Fort Worth 2020, no pet.) (mem. op.) (detailed findings could embarrass child).


In a property-division case, findings are absolutely necessary for the appellate court to determine whether the division was just and right. See e.g., In re Marriage of Rangel and Tovias-Rangel, 580 S.W.3d 675, 683 (Tex. App.—Houston [14th Dist.] 2019, no pet.). If a party property requested Section 6.711 findings, and none were issued, the appellate court will often abate the appeal with an instruction for the trial court to supplement the record with the requested findings. See e.g., Henry v. Henry, No. 03-11-00253-CV, 2013 WL 4056221 (Tex. App.—Austin 2013, no pet.) (mem. op.); Panchal v. Panchal, 132 S.W.3d 465, 466–67 (Tex. App.—Eastland July 10, 2003, no pet).

However, the trial court need not set out in minute detail every reason or theory by which it arrived at its final conclusion. Chislum v. Home Owhners Funding Corp., 803 S.W.2d 800, 806 (Tex. App.—Corpus Christi 1991, writ denied). Value of specific property is not an ultimate issue and needs not be set out in findings of fact. Rafferty v. Finstead, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ denied).


Finally, while conclusions of law may be instructive, an appellate court reviews questions of law de novo and will uphold a judgment if it can be sustained on any legal theory supported by the evidence. Fulgham v. Fischer, 349 S.W.3d 153, 157–58 (Tex. App.—Dallas 2011, no pet.). Erroneous conclusions of law do not require reversal. Hoyt v. Geist, 364 S.W.2d 461, 464 (Tex. App.—Houston [14th Dist.] 1963, no writ).


It ordinarily does little harm to request findings you may not need. Most of the time, the trial court and opposing party will take no action until a notice of past-due findings is made. If you determine findings are unnecessary, you can simply choose not to file a notice of past-due findings. The issue of a lack of findings would be waived for appeal, but the deadline to file a notice of appeal would still be extended. On the other hand, if findings were necessary, and you did not request them, that failure to make a request could result in a client’s claim being waived for appeal. So, although I am not recommending that you file a request in every case, I would recommend you take a moment soon after trial to consider whether you want to do so.



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