In the Matter of the Marriage of Christi Clark and John Barto Clark and in the Interest of E.C., a Child v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00087-CV
IN THE MATTER OF THE MARRIAGE OF
CHRISTI CLARK AND JOHN BARTO CLARK
AND IN THE INTEREST OF E.C., A CHILD
From the 18th District Court
Johnson County, Texas
Trial Court No. DC-D201800181
MEMORANDUM OPINION
John Clark appeals from a judgment that granted a divorce from his wife, Christi,
divided their marital estate, confirmed Christi's separate property, and made orders
relating to the minor child born of the marriage. In this appeal, Clark complains that the
trial court's findings of fact and conclusions of law were void because the trial judge that
entered them did not preside over the entire bench trial.1 Because we find that the
findings and conclusions were not void, we affirm the judgment of the trial court.
1John's brief did not include any argument or authorities as to his other listed issues. Therefore, to the
degree that those issues do not relate to the issue addressed in this opinion, those issues are inadequately
briefed and waived, and we will not otherwise address them. See TEX. R. APP. P. 38.1(i).
PROCEDURAL HISTORY
The first day of the final trial before the trial court was heard by the Hon. John
Neill, the elected judge of the district court. Judge Neill heard some testimony from
Christi and admitted exhibits into evidence. Judge Neill resigned from the trial court
when he was appointed as a justice to this Court. 2 The Hon. Sydney Hewlett was
appointed to the trial court to replace Judge Neill. The trial was recommenced many
months later with Judge Hewlett presiding. Over the span of two days, Judge Hewlett
heard additional evidence from Christi as well as John and other witnesses. Without
objection, Judge Hewlett also reviewed the transcript of the part of the trial conducted
before Judge Neill. Based on the testimony and evidence presented on all three days of
trial, Judge Hewlett granted the divorce, divided the marital estate, confirmed certain
property as the separate property of Christi, and made orders regarding conservatorship,
possession, and support of the minor child of the marriage. The final judgment was later
rendered and signed by Judge Hewlett.
John filed his first Request for Findings of Fact and Conclusions of Law prior to
the entry of the final judgment. Out of an abundance of caution, John timely filed a
second Request for Findings of Fact and Conclusions of Law pursuant to Rule 296 of the
Texas Rules of Civil Procedure and a Request for Findings of Fact and Conclusions of
Law pursuant to Family Code Section 6.711 after the judgment was signed. John filed a
2While a member of this Court, Justice Neill recused himself from participation in this proceeding. Justice
Neill has since retired from this Court.
In the Matter of the Marriage of Clark Page 2
timely Notice of Past Due Findings of Fact and Conclusions of Law and a second Notice
of Past Due Findings of Fact and Conclusions of Law based on the later-filed request.
Judge Hewlett issued Findings of Fact and Conclusions of Law based on the entirety of
the trial, including the evidence from the first day of the trial conducted by Judge Neill.
ISSUE(S) PRESENTED
Although John purports to have raised five issues on appeal, his brief only
contains argument as to one issue, which is that the findings of fact and conclusions of
law were void because they were entered by Judge Hewlett based in part on testimony
given at the trial that was conducted by Judge Neill. Christi did not file a brief with this
Court.3
In his brief, John argues that the holding in AD Villarai, LLC v. Chan II Pak, 519
S.W.3d 132 (Tex. 2017) is dispositive of this issue. In that proceeding, one judge heard all
of the evidence in a trial and rendered judgment before leaving office after being defeated
in an election. The successor judge, who heard none of the evidence, entered findings of
fact and conclusions of law from the trial. The Supreme Court of Texas held that the
original trial judge was the proper person to make the findings of fact and the second
judge's findings of fact were void. See Ad Villarai, LLC, 519 S.W.3d at 140.
In contrast, in this proceeding, the successor judge heard the majority of the
3 Because Christi failed to file a brief, we must treat facts stated in John's brief as true. See TEX. R. APP. P.
38.1(g); Rawlins v. Rawlins, 324 S.W.3d 852, 854 n.2 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We
conduct an independent analysis of John's claims of error, limited to the arguments he raises, to determine
if the trial court erred. See Dillard's, Inc. v. Newman, 299 S.W.3d 144, 147 (Tex. App.—Amarillo 2008, pet.
denied).
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evidence prior to ruling and issuing the Findings of Fact and Conclusions of Law. The
rules of civil procedure permit a practice in which one judge hears a part of a case and
determines some issues while another judge completes the case. Masa Custom Homes, LLC
v. Shahin, 547 S.W.3d 332, 335 (Tex. App.—Dallas 2018, no pet.); see TEX. R. CIV. P. 18; see
also Hull v. S. Coast Catamarans, L.P., 365 S.W.3d 35, 41 (Tex. App.—Houston [1st Dist.]
2011, pet. denied). Rule of Civil Procedure 18 authorizes a successor judge to issue
findings of fact if the presiding judge "dies, resigns, or becomes unable to hold court
during the session of court duly convened for the term." TEX. R. CIV. P. 18. Therefore, we
find that the successor judge's Findings of Fact and Conclusions of Law were not void as
in Ad Villarai, LLC. 4 We overrule this issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed April 19, 2023
[CV06]
4John does not cite to any authority other than Ad Villarai, LLC in support of his argument in his brief to
this Court.
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