Transcript

Holly Draper: Just because a court requires you to file proposed findings does not eliminate the need for you to request findings of fact and conclusions of law after the judgment has been signed. You are not protected. That deadline is still going to apply to you.

Voiceover: You’re listening to The Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, Attorney Holly Draper.

Holly: Hello everyone, and welcome back to The Texas Family Law Insiders podcast. Today, I’m coming to you with a solo episode on a very important but often overlooked element of family law, findings of fact and conclusions of law. These are governed by Texas Rules of Civil Procedure, Rules 296 through 299a.

I see a lot of family lawyers who do not do appellate work, who do not have this on their radar if they receive a ruling that goes against their client. And even if you are not an appellate lawyer and you have no intentions of appealing, there’s a possibility that your client might want to appeal. And if you miss this deadline, you could really be setting your client up for failure if you do not request findings of fact and conclusions of law in a timely manner.

So what are findings of fact and conclusions of law? They are something that the judge signs after a bench trial, not after a temporary hearing. I regularly will see people who are looking at a mandamus filing a request for findings of fact and conclusions of law after temporary hearings. That is not a thing. Don’t do it. There are some situations besides a final trial, where it might be needed, but those would be dispositive hearings that involve an evidentiary hearing.

So a plea to the jurisdiction is an example. If you get someone dismissed for failing to meet certain burdens, or something like that, you may need to do findings of fact and conclusions of law. But primarily, we see this in the context of a final bench trial. So, after you receive a bad result in a trial or something that your client might want to appeal, you need to file a request asking the judge for findings of fact and conclusions of law, which is asking the judge to explain what facts the court found to be true and how the court applied the law to those facts.

Examples of findings of fact would be, you know, what witnesses did the court find to be credible? How did the judge resolve conflicting testimony? Did the judge think a particular exhibit was fabricated? What facts did the judge use to determine the party’s net resources for purposes of child support or spousal support? What is certain property, real estate, a business, something that is of debatable value? What did the court determine that it was worth?

The conclusions of law deal with how did the court apply the law to those facts in this particular case. Was it a just and right division of property? Was the fit parent presumption overcome by clear and convincing evidence? Things like that. I did recently see that there are some trial courts out there that require attorneys to file proposed findings of fact and conclusions of law before a trial even happens.

I think this is strange. Maybe it’s because I’d never heard of it before, but just because a court requires you to file proposed findings does not eliminate the need for you to request findings of fact and conclusions of law after the judgment has been signed. You are not protected and that deadline is still going to apply to you. Findings that a court makes on the record or in a memorandum ruling are not enough.

You still need to request findings of fact and conclusions of law in the majority of types of appeals. An appellate court is not going to rely on a trial court’s oral statements in the record to reverse a judgment. So I’m gonna go on my soapbox for a minute and tell you that I hate findings of fact and conclusions of law, but they are a necessary evil.

I hate them because most judges don’t do them themselves. They ask either one attorney, the attorney who won or is not going to appeal, or more often, both attorneys to draft proposed findings by a certain deadline. In my experience, judges often will sign whatever the prevailing party’s attorney drafts.

Some judges will edit them or even create their own based on those proposed findings. But more often than not, I see judges signing what was submitted by the prevailing party. I have seen judges draft their own, but that is certainly a slim minority in my experience. So why are findings of fact and conclusions of law so important? If you do not request them, it could be fatal to certain elements of an appeal.

They are supposed to narrow the issues for appeal by figuring out the real reason that a court ruled the way that it did. And once again, I cannot convey this strongly enough, it is necessary to preserve certain appellate issues. If you do not request findings of fact and conclusions of law, and the court does not do them, the Court of Appeals will presume the facts and conclusions support the judgment.

So even if you look at the record and you think, yeah, this record really doesn’t support whatever it was that the judge ruled, if you don’t have findings of fact and conclusions of law, it probably isn’t even going to matter. You are going to lose. Certain types of claims are waived if you do not request findings of fact and conclusions of law. If you don’t request them, and you are the one who is appealing, you must challenge every possible ground supporting the judgment. If you don’t, you will lose based on an unbriefed issue in most circumstances.

So I’ve mentioned a few times about the importance of meeting this deadline. What is the deadline? It is 20 days after the final order is signed. That does not mean after an order is rendered orally in court or after the court issues a memorandum ruling. It is 20 days after the ultimate final decree of divorce, or suit affecting parent-child relationship, or modification order is signed. If you file it early, that’s okay.

You can file it early, it will be considered filed on the date the judgment is signed. So if you receive a bad memorandum ruling, but the final order hasn’t been signed based on that ruling yet, it is okay to go ahead and file requests for findings of fact and conclusions of law. It’s just prematurely filed and treated as filed the date the judgment gets signed.

This 20-day deadline cannot be extended. There are no circumstances under which a court is authorized to extend this deadline. So what happens if you miss the deadline? It could be fatal to your appeal. I have seen a lot of attorneys who don’t do appellate law mistakenly think that the deadline for findings of facts and conclusions of law is the same as the deadline to file a motion for new trial.

That is not the case. Motion for new trial is 30 days. Findings of fact and conclusions of law is 20 days. If you fail to timely request, you cannot complain about the failure of the judge to make findings, and the appellate court must affirm the judgment if it can be upheld under any legal theory supported by the evidence.

The appellate court is going to presume that the court found certain witnesses to be more credible. Whatever witnesses support the judgment, the appellate court will assume the trial court found them to be the most credible. Whatever evidence supported the judgment, the appellate court will presume the trial court believed that evidence and not the evidence that was counter to the judgment.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So what should you do if you’re asked to write them? This is the most common outcome when findings of facts and conclusions of law are requested, in my opinion. So if a judge asks you to write them, and you are on the prevailing side, you can assume that your findings of facts and conclusions of law are most likely going to be signed.

So if you’ve never done them before, I highly recommend reaching out to an attorney who has and seeing if you can see some samples, because there’s not going to be a form that really shows you how to do this. So if you’re the one who was asked to write it you want to pay attention to is it all issues, or is it only certain issues?

For example, if I am going to appeal a divorce and we’re not appealing the property, we are only appealing the kid issues, then I am only going to ask for findings of fact and conclusions of law with respect to the kid issues. And so then, when someone is asked to draft them, they should focus also on the kid issues. But what facts are important to the outcome that you received in court?

Assuming that you were the prevailing party, and you were drafting findings of facts and conclusions of law for the judge. If you are the losing party who is appealing, you also might be asked to write proposed findings. And this is where I’ve heard some differing opinions on what you should do in this situation.

I write them the way I feel the court should have found, and that most likely is going to conflict with what the ultimate ruling was. I know with a relatively high degree of certainty that the court is not going to sign my proposed findings, but I am still going to draft them the way I believe the court should have ruled.

So, for example, if we are dealing with a parent versus non-parent custody case, and we’ve requested, you know, let’s say the court awarded possession to a non-parent, and we don’t believe that’s appropriate, we are going to appeal. In our proposed findings of facts and conclusions of law, we are going to lay out all of the facts that show the parent is fit, and we are going to have a conclusion of law that the non-parent did not overcome the fit parent presumption by a preponderance of the evidence.

And we are going to, you know, find that the burden was not met. Do not draft findings of fact and conclusions of law that go against ultimately, what you are trying to appeal. It’s on the judge. It’s on the prevailing party to make those findings. Do not help them to do it. So what happens if you have filed your timely request for findings of fact and conclusions of law? The court has 20 days after you file under the rules to file their findings.

This is also an important deadline that most courts, I don’t know that I’ve ever seen a court that met that 20-day deadline. So that then kicks in another very important deadline for you as the person who wants to appeal. Within 30 days after you filed your request, but after 20 days, you must file a notice of past due findings of fact and conclusions of law under Rule 297. If you do not do that, it’s just as bad as if you never requested the findings of fact and conclusions of law in the first place.

Justice Miskel did a great paper on findings of fact and conclusions of law for Advanced that I was reviewing as I was prepping for this podcast, and I thought it was interesting that she put her policy when she was on the bench in the trial court was to never even start findings of facts and conclusions of law until after the notice of past due findings was filed.

Because if the attorney fails to do that, they don’t have to be done at all. I think it is great practice for attorneys to assume your judge is going to do the same thing. Calendar that 30-day deadline right away. Calendar the 20-day deadline for the judge to file findings. And as soon as that is passed, make sure you’re filing your notice of past due. Once you’ve done that, you’ve now really protected yourself in terms of everything you need to do to request those findings of fact and conclusions of law.

That being said, there is one more step that might be necessary in some circumstances. What happens if the court files findings of fact and conclusions of law and misses a key element that you are going to be appealing on? Are you safe? Can you just say the court didn’t find anything about this, we win. No, in a lot of cases, you are not.

So you should file a request for additional findings of fact and conclusions of law under Rule 298, asking the court to request a mistake, or to fix a mistake, if a mistake was made, or to address issues that are important to the appeal that did not get addressed the first time around. If the court fails to make findings on a particular ground or defense, then those elements could be presumed as long as they are supported by the evidence.

So what happens if the findings of fact conflict with each other or conflict with the judgment? If facts conflict with each other in a way that one fact supports the judgment for one party and the other supports the judgment for the other, it is fatal and requires a new trial. What happens if the finding of facts conflicts with a finding in the judgment?

Let’s say, for example, going back to the fit parent presumption. What if there was a finding that the non-parent did not prove by clear and convincing evidence that the fit parent presumption was overcome, then the court in the order awarded rights or possession to the non-parent. You are going to win on your appeal, because those create a fatal conflict, and we are going to get a reverse and remand.

Something I’ve seen happen more than you would think is what happens if your judge is gone. Your judge has retired, your judge has lost an election, and somebody else is going to be taking over. Your judge has died. Something has happened to your judge, and they are not there to do findings of facts and conclusions of law on your case.

A judge, whose term expired during the period for filing the findings, still has the authority to make those findings, even if they have already left the bench. The successor judge, new judge has been elected or appointed by the governor, does not have authority to file findings of fact and conclusions of law based on a trial that was heard by a predecessor judge.

If the predecessor judge does not file findings of fact and conclusions of law, but it’s still within that window, ask the appellate court to abate the appeal, remand, and instruct the predecessor judge to file them. If the judge’s term expired before or after the period in which findings of fact and conclusions of law can be entered, a new trial should be granted.

There is no statutory authority that allows the predecessor or the successor judge to sign in that situation, if the judge retires before filing findings of fact and conclusions of law, the appellant is entitled to a remand for a new trial. Once again, there is no authority in that situation that allows either the former or the successor judge to do the findings of fact and conclusions of law.

Holly: Now, what happens if nobody requested findings of fact and conclusions of law? You missed the deadline, you didn’t even know you should be doing it, and you’re going forward with an appeal. The appellate court is going to infer all fact findings necessary to support the judgment under any legal theory that is supported by the evidence.

All findings of fact necessary to support the judgment are implied. This means that most appeals based on factual sufficiency will fail without findings of fact and conclusions of law. What if there is no reporter’s record and no findings of fact or conclusions of law have been requested? It would be almost impossible for you to win on an appeal.

The appellate court is going to presume the trial court heard sufficient evidence to make all necessary findings needed to support the judgment. So I mentioned this a little bit earlier, but I want to reiterate it again. If you want to learn more about findings of fact and conclusions of law, I highly recommend that you find Emily Miskel’s paper from the 2025 Advanced Family Law Seminar.

It’s called “Findings of Fact and Conclusions of Law: Why They Matter and How Not to Mess Them Up.” It does a really great deep dive into this topic, and gives you a lot of cases to cite and figure out what is going to happen in whatever your situation may be. So at the end of the day, make sure if you’re going to trial, you have that deadline calendared for filing findings of fact and conclusions of law. It is 20 days from the date the order is signed.

And make sure, even if you don’t think your client is going to want to appeal, make sure they know that deadline, and they know that it could be fatal to an appeal if you do not file that request. So thank you, everyone, for tuning in today. Join us next time for another episode of Texas Family Law Insiders, and if you would take a minute, go subscribe and leave us a review. And we hope you enjoyed this episode.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.