Ruben Soliz v. Helen Soliz--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-099-CV

RUBEN SOLIZ,

Appellant

v.

HELEN SOLIZ,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,439

O P I N I O N

Ruben Soliz filed a bill of review seeking to have his and Helen Soliz's divorce decree and property division set aside on the theory that they were rendered in violation of the Bankruptcy Code's automatic stay provisions. Upon Helen's motion, the court dismissed the bill. By two points of error, he complains that the court's dismissal left a void order in place and that the court has refused to file findings of facts and conclusions of law even though properly requested to do so. Because Ruben does not raise an argument requiring reversal of the court's dismissal of his bill of review, we overrule both of his points and affirm the judgment.

On May 28, 1987, Ruben filed a bankruptcy petition. 11 U.S.C.A. 301 (West 1993). On June 11, 1987, the 52nd District Court granted a divorce between Ruben and Helen and divided their community property. Ruben attacked the divorce decree and property division by a bill of review filed on March 25, 1994. He set forth the two dates and alleged that the decree and division violated the automatic stay and, so, were void. Id. 362 (West 1993 & Supp. 1996).

On March 16, 1995, Helen asked the court to dismiss Ruben's bill "(1) for lack of timeliness, (2) for lack of merit, and (3) for lack of prosecution." The court obliged and dismissed the action on April 6, without specifying which ground in Helen's motion it had accepted. On the same day, Ruben requested that the court file findings of facts and conclusions of law in support of its order. When the court had not responded to his request by May 2, Ruben filed a notice of past due findings and conclusions. Apparently in response to this notice, the court notified Ruben that it was "not required by law to make such finding and [did] not intend to do so."

In his first point, Ruben asserts that the court erred when it dismissed his bill because "such action on the part of the court left a void order in place." In his argument, Ruben attempts to demonstrate that the divorce decree and property division were void as a result of his earlier bankruptcy petition. However, he has not attacked the specific action of the trial court in dismissing his bill. The court dismissed his action on the basis of a motion asserting three grounds for relief, and Ruben has not addressed any of these grounds in his brief before this court. Moreover, he has not attempted to show that the court was required to set aside a void judgment regardless of the other aspects of the proceeding. We decline to raise and brief the issue of the court's proper response to a void order when Ruben has the burden of demonstrating that the trial court erred. Tex. R. App. P. 74(f); Maranatha Temple v. Enterprise Products, 893 S.W.2d 92, 106 (Tex. App. Houston [1st Dist.] 1994, writ denied); Budd v. Gay, 846 S.W.2d 521, 524 (Tex. App. Houston [14th Dist.] 1993, no writ). Additionally, we are prohibited from sua sponte raising and resolving arguments on Ruben's behalf regarding the reasons asserted in Helen's motion. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex. 1990). Because Ruben has failed to attack the basis for the court's action or to show that the court would err if it "left a void order in place," we overrule point one.

In point two, Ruben argues that the court's refusal to enter findings of facts and conclusions of law constitute reversible error. However, if the court improperly refuses to file findings and conclusions, the appropriate remedy is for this court to abate the appeal and direct the court to comply with the appellant's request. Tex. R. App. P. 81(a); Cherne Industries, Inc v. Magallanes, 763 S.W.2d 768, 772-73 (Tex. 1989). Thus, his requested relief, i.e., reversal of the court's order dismissing his bill of review, is not appropriate for his complaint. Id. Additionally, the court's failure to file the findings and conclusions is harmless when the appellate record affirmatively shows that the complaining party suffered no injury. Id.; Green v. Watson, 860 S.W.2d 238, 245 (Tex. App. Austin 1993, no writ). Because Ruben has not attempted to attack the basis for the court's ruling in his brief, the record shows that he has not been injured. Thus, we overrule point two.

Having overruled both of Ruben's points, we affirm the judgment.

PER CURIAM

Before Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 1, 1996

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