### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00292- CV

Daniel Jam es Caldw ell, Appellan t

v. Jennif er E. G oodf

ellow Cald well, Ap pellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 OF WI LLIAM SO N COUNTY , NO. 09- 3577 -F C4, H ONO RAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Daniel J ames Caldwe l l (“Daniel”) has appealed from the final decr ee in his divorce proce eding from appellee J ennife r E. Goodfe llow Caldwell (“Jennifer” ). Daniel asser ts 1 the court err ed in g ranting the divorce based on no fault-g rounds, assig ning the rig hts and duties of the parents, dividing the marital estate, denying his motion for new t rial, and failing to r espond to his r equest for finding s of fac t a nd conclusions of law. For rea sons tha t f ollow, w e aff

irm the trial court’s judg ment.

BACK GR OUND

The parties wer e marrie d in J uly 2007. I n 2009, citing insupportability , J ennife r filed for divorce

. After a bench trial on May 4, 2010, the trial court divided the parties’ marital estate and

Be cause both parties have the same la st name, we will refe r to them by their first name s. 1appointed the parties joint manag ing conser vators o f their minor son. J ennife r was appointed primary conser

vator and Daniel was allowed possession of the child pursuant to a s t andard possession order modified by the couple. Shortly there afte r, upon Daniel’s i nstruction, Daniel’ s attorney reque sted permission to withdraw. Daniel filed a motion for new trial and notice of appea l on May 14, 2 0 1 0 , an d o n May 26, 2010, the final decr ee of divorce was render ed. Daniel filed an affid avit of i ndige nce on appea l, which J ennife r contested. After a hear ing, the trial court sustained J ennife r’s co n t es t to Daniel’ s aff

idavit of inability to pay appellate costs, an order this Court aff irmed upon Daniel’ s appea l. Daniel’ s motion for new t ri al was denied on J uly 16, 2010. On September 23, 2010, he

2 filed both a motion to modify the divorce decr ee nunc pro tunc and a reque st t h at t h e t ri al court provi d e fi n d ings of fac t and conclusions of law. The nunc pro tunc final decr ee of divorce was rende red on October 18, 2010, and Daniel filed a notice of past due finding s of fac t and conclusions of law on N ovember

4, 2010.

DISCUSSIO N On Aug ust 16, 2012, this Court order ed Daniel to pay or make arr ang ements to pay for the repor

ter’s rec ord by September 17, 2012, and inform t h e cler k of the Court by letter what pay ments or arr ang em ents to pay he had made. To date, Daniel has failed to comply with this 3 Court’s order

.

See Caldwell v. Ca l d

w ell , No. 03-10-00292, 2012 WL 3704978 (Tex. App.—Austin 2 Aug .16, 2012, order ). Id. 3 2I f the cler k’s rec ord has been filed but the court repor ter has not fi l ed a repor

ter’s

rec ord beca

use the appellant did not pay or make arr ang ements to pay the repor ter’s prepa

ration fee , an appellate court may

—afte r first g i v i n g the appellant notice and a rea sonable opportunity to

cu re—decide those issues that do not require a reporter ’s record for a decision. See Tex. R. Ap p . P. 37.3(c) ; see also Office ofPub. Util. Counsel v. Public Util. Comm’n , 878 S.W .2d 598, 599-600 (Tex. 1994) (appe llate co u r t mu st identify and addre ss issues not requiring repor ter’s rec ord if cler

k’s

rec ord h as b ee n fi l ed). I n this case , the clerk’s record has been filed, but no repor ter’s recor d has been filed, and Daniel has been g iven notice and a rea sonable opportunity to cure . Acc ording ly , we wi ll identify and addre ss those issues not requiring the repor ter’s rec ord. See Office of Pub. Util. Counsel , 878 S.W .2d at 599-600

I n his first issue, Daniel argues that the evidenc e is insufficient to support a “no fault” divorce

. He contends in his second issue that the court err ed in its division of the marital estate and in a ssigning the rig hts a

nd duties of the pare nts. I n his fourth issue, Daniel asser ts that the divorce decr ee was contrary to the evidence and thus the court err ed in deny ing his motion for new t rial. 4 These issues require us to revie w the sufficie n cy o f the evidenc e supporting the court’s decr ee of divorce and the or der deny ing Daniel’s moti on for new t rial. None of these issues c an be de cided without a repor

ter’s r ecor d. Wit hout a repor

ter’s rec ord of the hear ing on which the court’s finding s rec ited in the divorce decr ee wer e based, we cannot conclude that the evidenc e is insufficient to support the trial

I n his third issue, Daniel claims the t ri al court err ed in sustaining J ennife r’s contest to 4 Daniel’ s aff

idavit o f inability to pay appellate costs, an issue this Court has alre ady rea ched in its order of Aug ust 16, 2012, see id., and nee d not rea ch her e. 3court’s finding s and t h e j u d gment based on them. See Bryant v. United Shortline Inc. Assurance

Servs., N.A. , 972 S.W .2d 26, 31 (Tex. 1998) (“We i n d u lge ever y presumption in favor of t he trial court’s finding s in the absenc e of a statement of fac ts

. ”); In re Spiegel , 6 S.W .3d 643, 646 (Tex. App.—Amar illo 1999, no pet.) (“Without a repor ter’s rec ord we do not know what, if any , evidenc e

was prese nted to the trial court.” ). I ndeed, in the absenc e of the repor ter’s rec ord, we must presume that the missing evidenc e supported the trial court’s judgme nt. Benne tt v. Cochran , 96 S.W .3d 227, 230 (Tex. 2002); Schafer v. Conner , 813 S.W .2d 154, 155 (Tex. 1991). We overr ule Daniel’ s first, second, a nd fourth issues. We still will consider questions of law even if there is no repor ter’s rec ord. Segrest

v. Segrest , 649 S.W .2d 610, 611 (Tex.), cert. denied, 464 U.S. 894 (1983); In re L.C.H. & K.G.H. , 80 S.W .3d 689, 691 (Tex. App.—For t Worth 2002, no pet.). In his fifth issue, Daniel argues the trial court err ed in declining to file finding s of fac t and conclusions of law as he had reque sted. On May 26, 2010, the trial court rende red its final decr ee of divorce , and Daniel’ s motion for new trial

was denied on J uly 16, 2010. On September 24, 2010, Daniel filed both a reque st for finding s of fac t and conclusions of law and a motion for nunc pro tunc modification of the divorce decr ee. The nunc pro tunc final decr ee of divorce was rende red on October 18, 2010, and o n November 4, 2010, Daniel f iled a notice of

past due fa ct finding s and conc lusions. Wit hin 20 day s afte r a judgme nt is signe d, a party may reque st the court to state in writing its fac t finding s and conclusions of law. See Tex. R. Civ. P. 296. The court shall file its fac t finding s and conclusions within 20 day s afte r a timely reque st is filed. See Tex. R. Civ. P. 297 (time to file finding s and conclusions). I f the court fails to timely file finding s of fac t and conclusions of

4law, the party making the reque st shall, within 30 day s afte r filing the orig inal reque st, file a notice

of past due f

indings of f

act a nd conclusions of law

. Id. A nunc pro tunc judgme nt is one rende red to corr ect non-substantive cler ical err ors afte r the court loses its plenar y power . See Tex. R. Civ. P. 316 (allowing corr ection of cler ical err ors i n t h e j u d g ment); see also Bla ck’s L aw Dictionary 920 (9th ed. 2009) (nunc pro tunc judgme n t define d as “a judgme nt enter ed on a day afte r the time when it should have been enter ed, as of the ear lier date” ). Daniel claims that, by signing the nunc pro tunc fi n al d i v o rc e decr ee on October 18, 2010, the trial court extended the deadlines for both his reque st for finding s of fac t and conclusions of lawand notice of past due fa ct finding s and conc lusions of law. Although Texas Rule of Civil Procedur e 306a(6) extends the deadline for reque sting finding s of fac t a

nd conclusions of law afte r a nunc pro tunc order has been signe d, the deadline is extended only for those complaints that are inapplicable to the orig inal document. See Tex. R. Civ. P. 306a(6)

. All of Daniel’ s complaints on appea l are applicable t o the orig inal decr ee of divorce rende red on May 26, 2010, making both his reque st fo r fi n d ings of fac t and conclusions of law d at ed September 24, 2010, and his notice of past due fac t finding s and conclusions dat ed November

4, 2010, untimely

. See Tex. R. C iv. P. 296, 297. W e over rule Da niel’s fifth issue.

CONCLUSION We affir m the trial court’ s decr ee of divorce

.

5__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: Nove mber 8, 2012

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