Full opinion text
OPINION ANN CRAWFORD McCLURE, Justice. Richard Chandler (“Richard”), appeals from a summary judgment in favor of Rachel Chandler, William R. Copeland, and Weldon S. Copeland, Jr., Appellees, and a permanent injunction and permanent order to cease and desist. Finding no error, we affirm. FACTUAL SUMMARY The litigation between Richard and Rachel Chandler spans some nineteen years and, at a minimum, some ten lawsuits in both state and federal courts scattered from El Paso to Lubbock to Austin. The driving issue, from Richard’s perspective, is whether Rachel is entitled to an interest in his military retirement benefits. The underlying issue for our consideration is whether the Chandler marriage was valid or void. Because of the multiplicity of lawsuits and their resulting entanglement, we first provide a detailed chronology of events. The Chandler Marriage and Divorce On June 29, 1942, Rachel married Pablo Torres Tovar in Mexico. While she claimed to have divorced him, there is no recorded divorce decree on file in Mexico. Rachel and Richard married on October 17, 1949, in Juarez, Mexico. On May 28, 1980, a final decree of divorce, entered in Cause No. 77-1540, dissolved the marriage. Pursuant to the decree, Rachel was awarded the following: The Court having found that [Richard] is retired from the United States Army and is currently receiving United States Army retirement pay on a monthly basis, and that such retirement pay constitutes vested contingent community property, [Rachel] is therefore awarded the sum of FOUR HUNDRED FIFTY DOLLARS ($450.00) per month from [Richard]’s monthly retirement pay if, as and when such benefits are paid to [Richard] and [Richard] shall hereafter remit to [Rachel] the sum of FOUR HUNDRED FIFTY DOLLARS ($450.00) from such retirement benefits, and [Richard] is hereby constituted a trustee for the purpose of receiving said sum of money hereinabove awarded to [Rachel] and [Richard] shall immediately upon receipt thereof, and not more than five (5) days after such receipt, remit said sum to [Rachel], The Bill of Review In June of 1981, Richard learned that Rachel may not have been divorced from Pablo Torres Tovar. As a result, he ceased paying any portion of the retirement benefits to Rachel as required under the decree. In August 1983, Rachel, through her attorneys, successfully applied to the United States Army Finance and Accounting Center (USAFAC) for direct payment of the benefits awarded to her. When the Army refused Richard’s request that the direct payment be discontinued, Richard filed a bill of review, which although originally and mistakenly docketed under the divorce Cause No. 77-1540, was subsequently redocketed as Cause No. 87-5225. Specifically, Richard alleged: [Richard] was prevented from asserting his right to a greater share of the parties’ estate than that awarded to him pursuant to the above-described agreement and judgment by [Rachel]’s fraud in securing the agreement and [Richard]’s consent to entry of the judgment. Specifically, [Rachel], knowing that her representations and statements were false and with the intent to defraud [Richard], continually, through the entire duration of the purported marriage to [Richard], represented to [Richard] that she had been married (prior to the purported marriage to [Richard]), but had, in fact, received a divorce from her prior husband. In reliance on these representations, [Richard] entered into the purported marriage with [Rachel]. Contrary to [Rachel]’s representations, [Rachel] was previously married to another individual in Zacatecas, Mexico, which marriage was never dissolved by divorce, annulment, or death of either parties [sic]. As a result, the purported marriage between [Richard] and [Rachel] is void and of no effect. He then sought the following relief: [Richard] requests that the Court set aside and cancel the settlement agreement signed by [Richard] and [Rachel] for the reasons set forth above; that the Court set aside the judgment rendered on May 28, 1980, which incorporated the terms of the property settlement agreement; and that the Court order a division of the estate of the parties in a manner that the Court deems just and right. Despite his specific allegation that the marriage was void, Richard did not seek a declaratory judgment that the marriage was void. The only relief he requested was that the property settlement agreement be set aside and the property redivided. This omission will become significant, as we will detail. On October 5, 1983, USAFAC sent a letter to Rachel advising her that because of the pending bill of review action, all monies owed to her under the decree would be escrowed until the litigation was concluded. For reasons unexplained in the record, the bill of review sat on the docket for some six and a half years. On April 6, 1990, the court entered an “Order Granting Partial Motion for Summary Judgment [sic].” This order provided: After viewing the evidence and upon conclusion of the arguments of counsel, the Court finds that the Petitioner, RICHARD L. CHANDLER, has established a prima facia case of a meritorious defense to the cause of action alleged to support the Judgment. IT IS, THEREFORE, ORDERED that Petitioner’s Partial Motion for Summary Judgment is granted as to the issue of a prima facia meritorious defense. The court finds that the Petitioner is entitled to a trial on the merits of those issues in his Original Petition for Bill of Review and the Answer thereto filed by the Respondent, as those pleadings may be amended prior to trial. The case proceeded to a jury trial on March 18,1991. The charge inquired: Do you find that prior to the marriage of Richard L. Chandler in question in this case, Rachel Chandler knowingly made false representations as to material facts to Richard Chandler with the intent to induce him to enter into that marriage and that Richard Chandler suffered a pecuniary loss as a proximate cause of his reliance on the representations? You are instructed that when answering this question you are to limit your considerations to Rachel Chandler’s representation, if any, that she had been divorced from Pablo Torres Tovar. The jury answered “No.” The court entered a take-nothing judgment on Richard’s bill of review action. Richard appealed the judgment, and this court affirmed. Chandler v. Chandler, 842 S.W.2d 829 (Tex.App.—El Paso 1992, writ denied). The mandate issued September 10, 1993. The Litigation Explosion Undeterred, Richard attacked on multiple fronts. Armed with the partial summary judgment we have already referenced, he visited with the legal assistance office of Reece Air Force Base. On December 14, 1993, a legal assistance attorney wrote to USAFAC advising them that Mr. Chandler was granted a Motion for Summary Judgment in which the court found as fact that Rachel Chandler entered in marriage with Richard Chandler without divorcing her first husband. Under Texas law, a marriage is void if either party was previously married and the prior marriage is not dissolved. Vernon’s Texas Codes Annotated, Family Code Section 2.22, Acuna v. Sullivan, 765 F.Supp. 510 (1991). Property acquired during a putative marriage in Texas is not community property. Chapman v. Chapman, 11 Tex.Civ.App. 392, 32 S.W. 564. Therefore there is no basis upon which to make a community property division. It should be further noted that in the original divorce decree served on the Army that a specific finding of marriage is not made. Thus, the Army has no factual basis upon which to invoke the Former Spouses Protection Act and make any direct payments to the former Rachel Chandler. Thereafter, in September of 1994, Richard, by this time a resident of Lubbock, filed suit against Rachel in Lubbock County seeking a declaratory judgment that the marriage and divorce decree were void. The suit asserts “that the order granting partial summary judgment fully adjudicated the suit to declare the parties’ marriage void and the legal effect of such judgment is to render [Rachel] either a meretricious or putative former spouse neither of which status [sic] would have interest in the community property named in the decree of divorce.” The trial court granted Rachel’s motion to transfer venue and the case was filed under Cause Number 96-4533 in the 205th District Court of El Paso County. On November 16, 1994, Richard filed suit in Cause No. 87-5225 in the 41st District Court of El Paso County seeking a declaratory judgment that the divorce decree and take-nothing judgment in the bill of review litigation were void. The same day, in Cause No. 77-1540 in the 41st District Court, he filed a motion for clarifying order, seeking an order requiring Rachel to revoke her application for direct payment of the military retirement benefits. These pleadings give rise to the judgment from which Richard appeals. However, because a permanent injunction is at issue, we pause to note the filing of still other lawsuits. In 1995, Richard filed suit against Rachel and USAFAC in Austin, Travis County, Texas. This suit was ultimately transferred back to El Paso County on a change of venue and was docketed as Cause No. 95-12922 in County Court at Law Number Four. It likewise sought a declaratory judgment as to the validity of the marriage, the rights of the parties under the property settlement agreement and under the Uniformed Services Former Spouses’ Protection Act (USFSPA). At the Army’s request, the suit was removed to federal court. A United States District Judge for the Western District of Texas dismissed the suit and enjoined Richard from filing any lawsuits against Rachel based on “anything arising from or coming from or associated with the divorce case, Cause Number 77-1540.” Also in 1995, in a wholly separate proceeding, Richard filed suit in Cause No. 95-921 in the 205th Judicial Court in El Paso County, seeking a declaration that the marriage and divorce decree are void. Notwithstanding all of these lawsuits, Richard admittedly filed four or five other federal lawsuits against the United States government contending that his marriage to Rachel was void. Rachel was not named as a party to the latter suits. While he denied filing suit to compel a governmental official to deport Rachel from the United States, he admitted that he had filed a motion explaining “all the failures of her truthful affidavit, etc. as far as her prior marriage, not having children, profession that she was in and they said they couldn’t — that I couldn’t — ... I couldn’t — I was not a proper party to make that motion. And they denied the motion and that was the end of it.” He also complained that federal officials were not “doing what they were supposed to do in examining the naturalization papers of people coming into this county [sic].” Still further, while the record is not clear as to the dates of the order, a Lubbock County judge enjoined Richard from filing any further “frivolous lawsuits” against Rachel and sanctioned him $5,000, which he has not paid. Procedural History of This Litigation As we have already noted, on November 16, 1994, Richard filed suit in Cause No. 87-5225 in the 41st District Court of El Paso County seeking a declaratory judgment that the divorce decree and take-nothing judgment in the bill of review litigation were void. The same day, in Cause No. 77-1540 in the 41st District Court, he filed a motion for clarifying order, seeking an order requiring Rachel to revoke her application for direct payment of the military retirement benefits. On January 11, 1995, Richard filed a motion for summary judgment in Cause No. 87-5225 relating to the declaratory judgment. On January 17, Judge Mary Anne Bramblett, presiding judge of the 41st District Court, requested the appointment of Judge Herb Marsh to preside in Cause No. 77-1540 due to her crowded docket. The next day, Judge William E. Moody, presiding judge of the Sixth Administrative Judicial Region, appointed Judge Marsh to hear the case. Appearing pro se, Richard wrote a letter to Judge Moody, dated February 7, 1995, regarding the appointment of Judge Marsh. Uncertain as to whether the letter constituted an objection, Judge Marsh telephoned Richard. Ultimately, on April 6, 1995, Judge Marsh presided over a hearing on motions for temporary and permanent injunctions and on Richard’s motion for summary judgment. Rachel and her attorneys filed their motion for summary judgment on April 11, and a second hearing related to the summary judgment motions was conducted on June 28. On June 29, Richard filed a motion to recuse Judge Marsh, which was duly referred to Judge Guadalupe Rivera of the 168th District Court on August 10. A recusal hearing was conducted on September 18, 1995. The order denying the motion to recuse was signed October 9, 1995. On November 17, 1995, Richard filed a motion to challenge the visiting judge, and on November 30, he filed yet another objection to Judge Marsh. In March 1996, Richard filed an application for temporary and permanent injunctions, seeking to enjoin Rachel from receiving direct payment of the retirement benefits and seeking to suspend Richard’s obligation under the divorce decree to pay Rachel a portion of the retirement benefits. On February 20, 1997, Richard filed an amended motion for clarifying order and enforcement of the divorce decree, an action against Rachel and her attorneys for conspiracy and fraudulent concealment, and a suit for declaratory judgment that the marriage and decree were void. On February 24, he filed an amended motion for summary judgment on his “entire claim” against all of the defendants. On February 28, Richard filed a motion for sanctions and Rachel filed a motion for an order to cease and desist, seeking an injunction against Richard from filing any additional lawsuits or proceeding with any pending lawsuits against Rachel. The Order On March 14, 1997, Judge Marsh conducted the final hearing on the parties’ motions for summary judgment and in-junctive relief. The final order, entered May 14,1997, • granted summary judgment to Rachel and her attorneys on the grounds that Richard’s claims were barred by res ju-dicata and statute of limitations; • found that the partial summary judgment was an interlocutory order which was invalidated and superseded by the final judgment in the bill of review; • found that the partial summary judgment was not a final judgment, was null and void and of no legal effect; and • found that Richard had wrongfully attempted to influence officials by representing the order as a valid, binding, operative order of the court. The court then entered a permanent injunction and permanent order to cease and desist, providing: RICHARD CHANDLER is PERMANENTLY ENJOINED from and he is PERMANENTLY ORDERED TO CEASE AND DESIST in filing any new actions against or proceeding with any actions now pending against RACHEL CHANDLER, WILLIAM COPELAND, WELDON S. COPELAND, SR., WELDON S. COPELAND, JR., WALTER BOYAKI, JOHN MUNDIE, RALPH MIRANDA, and THE UNITED STATES OF AMERICA, INCLUDING THE UNITED STATES ARMY, THE UNITED STATES TREASURY, and all other AGENCIES, BRANCHES, OR COMPONENT PARTS OF THE UNITED STATES GOVERNMENT. RICHARD CHANDLER is further and additionally permanently enjoined from and he is permanently Ordered to cease and desist from representing or contending to any public officials in any form or forum that the Decree of Divorce rendered by this Court on May 28, 1980, in Cause No. 77-1540 in [sic] null or void or invalid or otherwise not a valid final judgment. RICHARD CHANDLER is further and additionally permanently enjoined from and he is permanently Ordered to cease and desist from representing or contending to any public officials in any form that his marriage to RACHEL CHANDLER was null or void or invalid or otherwise not lawful or legal. RICHARD CHANDLER is further and additionally permanently enjoined from and he is permanently Ordered to cease and desist from representing or contending to any public officials in any form or forum that the document filed in Cause No. 87-5225 on May 25, 1990, entitled ‘ORDER GRANTING PARTIAL MOTION FOR SUMMARY JUDGMENT’ is a valid final judgment. By ten points of error, Richard challenges the trial court’s judgment. We first address the rules of pro se representation. PRO SE REPRESENTATION At various times throughout the history of this litigation, Richard has opted to represent himself. With regard to the proceedings at issue in this appeal, he has appeared in the trial court below and in this court pro se. Litigants choosing to appear pro se must comply with the applicable procedural rules and are held to the same standards that apply to licensed attorneys. In re Estate of Dilasky, 972 S.W.2d 763 (Tex.App.—Corpus Christi 1998, no pet.); Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.—Amarillo 1997, no writ); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex.App.—Texarkana 1995, writ denied). No allowance is to be made for the fact that a litigant is not an attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.App.—Texarkana 1997, no writ). To treat him differently would accord him an unfair advantage over litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex.1978); Lin v. Houston Community College System, 948 S.W.2d 328, 336 (Tex.App.—Amarillo 1997, writ denied). We apply these principles to the matters before us. THE APPOINTMENT OF JUDGE MARSH In his first three points of error, Richard contends that it was error for Judge Marsh not to recuse himself upon receipt of Richard’s initial letter of objection, that it was error for Judge Rivera to deny the motion to recuse Judge Marsh, and that Judge Rivera erred in not filing findings of fact and conclusions of law following the recusal hearing. Additionally, while not raising it as a designated appellate issue, Richard contends that the appointment of visiting judges is improper and unfair, and should be of concern to this Court. Statutory Strikes Statutory Authority The Texas Government Code grants to the presiding judge of an administrative judicial region the power to assign visiting judges. Tex.Gov’t Code Ann. § 74.056 (Vernon 1998). Richard contends that a visiting judge may only be appointed in the absence of the presiding judge. Although the Government Code allows for the assignment of a visiting judge in the absence of the presiding judge, this provision is not exclusive. Tex.Gov’t Code Ann. § 74.056(c). Subsection (a) of § 74.056 specifically allows for the assignment of visiting judges in order to dispose of accumulated business. This procedure allows for courts to ease the heavy burden of already crowded dockets. Claiming that the use of visiting judges is unfair, Richard argues that such a “dial-a-judge” system should be of concern to this Court. Overcrowded dockets are a major concern for every court, including the courts of appeals. The appointment of judges to assist in the disposal of cases on crowded dockets is allowed by the Texas Legislature in an attempt to ease this burden on the courts and to expedite the disposition of eases. We will be the first to recognize that the use of visiting judges has generated a great deal of public scrutiny. In a recent unanimous opinion, the Texas Supreme Court detailed the statutory development of the system authorizing the use of assigned judges. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438-40 (Tex.1997). Prior to 1957, only sitting district judges could be assigned to another court. Legislative amendments in 1957 authorized the appointment of retired judges who were sixty-five years of age with at least ten years experience to serve by assignment. Act of May 23, 1957, 55th Leg., R.S., ch. 408, § 1, 1955 Tex.Gen.Laws 1236; Mitchell, 943 S.W.2d at 438. Twenty years later, the Legislature added former district judges who had not been defeated for re-election and were below the age of seventy as an additional category of judges eligible for appointment. Act of April 21, 1977, 65th Leg., R.S., ch. 115, § 2, 1977 Tex.Gen.Laws 249; Mitchell, 943 S.W.2d at 438. Additional amendments followed in 1985 (qualifications revised to service of four years and omitting the prohibition against defeated judges), 1987 (judges eligible for appointment expanded to include retired or former statutory county court at law judges), and 1989 (litigants entitled to only one objection to an assigned judge of any kind). In 1991, the debate intensified, focusing on the assignment of defeated judges: The Legislature added subsection (d) to Section 74.053 as an amendment to House Bill 555 during the regular session of the 72nd Legislature in 1991. As initially proposed, House Bill 555 was intended to clarify the eligibility requirements to be assigned as a visiting judge. See Committee On Judicial Affairs, Bill Analysis, Tex. H.B. 555, 71st Leg., R.S. (1989). During a public hearing on the bill the Senate Jurisprudence Committee conducted, several senators expressed dissatisfaction with the extent assigned visiting judges were used, and urged that parties ought to have the right to have a locally elected judge decide their case. The Senators discussed a perceived problem, particularly in Harris County, that judges who had just been turned out of office by an election were returning to the same court as an assigned judge. The committee reported House Bill 555 with an amendment that would allow parties to object to the assignment of any judge other than current holders of elective office. Public Hearing on H.B. 555 Before Senate Jurisprudence Committee, 71st Leg., R.S., (May 14, 1991)(tape available through the Senate Staff Services Office). Section 74.053 clearly is intended to give parties the right to veto the assignment of certain former judges. The problem which motivated the legislation was the perceived abuse of' the assignment system, in particular the use of judges who had been recently rejected by the electorate. The solution aimed at mitigating the problem was to allow parties to object to some, but not all, former judges. The line of demarcation is experience. However, the Legislature intended to measure a judge’s experience not merely by time put in as a judicial officer, but by service over a period of years with the approval of the electorate. The Legislature intended that a party may object to a former judge under Section 74.053(d), but not if the judge had served as an elected judge long enough to be vested under the retirement system. By promulgating Section 74.053(d), the Legislature distinguished two kinds of former judges: those who had vested when they left office, and those who had not. Mitchell, 943 S.W.2d at 439-40. Currently, Tex.Gov’t Code Ann. § 74.053 provides: § 74.053. Objection to Assigned Judge (a) When a judge is assigned under this chapter the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge. (b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case. (c) An objection under this section must be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside. (d) A former judge or justice who was not a retired judge may not sit in a case if either party objects to the judge or justice. Pursuant to this statutory scheme, there are three categories of judges eligible for assignment, “regular,” “retiree,” and “former” judges. A ‘regular’ judge is one who is a current officeholder of another court. Tex.Gov’t Code § 74.054(a)(1), (a)(5), (b). A ‘retiree’ judge is one who, as discussed earlier, is a judge receiving an annuity under the Judicial Retirement System. The Code does not specifically define the term ‘former judge,’ but the Code requires that both former and retiree judges have served as a regular judge for a minimum of forty-eight months. Id. § 74.055(c)(1), (e). Thus, a former judge for purposes of assignment may be defined as one who has served as a regular judge for at least forty-eight months, but who is not a retiree judge. Mitchell, 943 S.W.2d at 439. Thus, if a party to a civil case files a timely objection, the judge may not hear the case. Tex.Gov’t Code Ann. § 74.053(b). Under this section, a timely objection is defined as one filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside. Tex.Gov’t Code Ann. § 74.053(c). A litigant may object to a “regular” or “retiree” judge only once in a civil case. Tex.Gov’t Code Ann. § 74.053(b). However, there is no limit to the number of objections which may be lodged against the assignment of a “former” judge. We turn now to the specific complaints concerning the appointment of Judge Herb Marsh. Just as there are three classifications of assigned judges, there are three methods or remedies prescribed by our system of jurisprudence for the challenge to a judge. “Judges may be removed from a particular case either because they are constitutionally disqualified, Tex. Const. art. V, § 11, because they are subject to a statutory strike, Tex.Gov’t Code § 74.053(d), or because they are recused under rules promulgated by [the Supreme] Court. Tex.R.Civ.P. 18a, 18b; Tex. R.App.P. 16.” In re Union Pacific Resources Company, 969 S.W.2d 427, 428 (Tex.1998). Our first inquiry is whether Judge Marsh was properly appointed to hear any or all of the Chandler proceedings. Second, we will address whether Richard properly objected to the appointment of Judge Marsh, and if so, whether he later waived it. General or Blanket Assignment On January 17, 1995, Judge Mary Anne Bramblett requested that the presiding judge of the Sixth Administrative Region assign Judge Herb Marsh to preside over Chandler v. Chandler, et al., Cause No. 77-1540 for the duration of the case due to her crowded docket. The next day, Presiding Judge William E. Moody entered a written order of assignment, specifically noting: This assignment will begin on the 18th day of January 1995, and will continue for the period of time that may be deemed necessary for the assigned Judge to complete trial of any case or cases begun during this period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period. Although the request for assignment specified a particular docket number of the case assigned, the assignment itself did not. Instead, it was a blanket assignment. Reading it together with the request, it appears that Judge Marsh was appointed to preside over Cause No. 77-1540 and all other matters “growing out of’ that case. Ordinarily, a visiting judge sitting under a general assignment and presiding over any pretrial hearing is authorized to hear all related proceedings, including a trial on the merits. Bourgeois v. Collier, 959 S.W.2d 241, 244 (Tex.App.—Dallas 1997, no writ); Money v. Jones, 766 S.W.2d 307, 308 (Tex.App.—Dallas 1989, writ denied). Several appellate decisions have referred to assignments containing the “growing out of’ language utilized here. See Starnes v. Chapman, 793 S.W.2d 104, 105 (Tex.App.— Dallas 1990, orig. proceeding); Bourgeois, 959 S.W.2d at 244. The two lawsuits in issue here, Cause No. 77-1540 and Cause No. 87-5225, stem directly from the same dispute — the validity or invalidity of the Chandler marriage, the Chandler divorce decree and Rachel’s entitlement to an interest in Richard’s military retirement benefits. Judge Marsh was specifically requested to preside over the cause number reflecting the original divorce action. The bill of review action grew directly out of the divorce action; indeed it sought to set aside the divorce decree itself. The additional filings relate to Richard’s efforts to declare void the original decree of divorce, the bill of review judgment, the underlying marriage, and failing that, to clarify that Rachel was not entitled to direct payment of the benefits awarded her under the decree. We find no fundamental impediment to the use of the general or blanket assignment at issue here and conclude that Judge Marsh was properly appointed. The Objection Richard asserts that his February 7, 1995 letter to Judge Moody constituted a timely objection and that Judge Marsh’s removal was automatic. In his letter, he stated: 4. The judge requested to hear this case is Herb Marsh, whom I believe is the judge that refused to hear an injunction action concerning the same subject matter as the motion to clarify, which may indicate he has a bias against me. If I have been given formal notice of the assignment request for the purpose of my submitting objections or waiving such by not answering, I submit the foregoing for consideration and appropriate action. If such request is a form of recusal I would request that such be disclosed rather than the request be granted on grounds of a crowded docket. My only concern is having a fair and impartial hearing on my claim. Upon receipt of the letter, Judge Marsh telephoned Richard in order to ascertain whether his letter constituted an objection to the appointment. The parties agree in part, and disagree in part, as to the nature of the conversation. Judge Marsh described it as follows: By that letter I couldn’t tell whether he was objecting to me hearing this case or not. And that’s the reason I called him. I called him from Judge Bramblett’s office and called his number in Lubbock. And I said, T have your letter here.’ I said, T don’t recall anything about what you have put in your letter. I don’t recall any contact, any previous case. Would you explain to me what it was,’ and he did. And he thought that I had refused to hear something in that ’77 case. And I told him I had no recollection of it at all. He said it had something to do when his lawyer then had come in to see me in the courtroom. That was in ’80-some-thing, and had come back out and told him I wouldn’t hear anything. I told him I had no recollection of that at all. But if he was objecting to me sitting on the case; I would honor his objection and not take the assignment. And he said, ‘No, that’s all right.’ Said, ‘Just go ahead. I agree that you hear the case and take on the case and do the hearings and summary judgments,’ and I just go ahead and set them. So that’s when we proceeded to set the April 6th hearing on summary judgments. JUDGE RIVERA: And Mr. Chandler appeared at that first hearing of April 6th and participated in the hearing, and it was not until towards the end of the proceedings that he voiced dissatisfaction? JUDGE MARSH: He made no objection whatever at the April 6th hearing. None whatever. We find Richard’s sworn statements contained within his motion to recuse significant: 1. On January 17, 1995, the permanent judge of said court, the Honorable Mary Anne Bramblett, requested the assignment of Judge Marsh to preside over: RICHARD CHANDLER VS. RACHEL CHANDLER, 77-1540. 2. Thereafter, Judge Marsh consulted with plaintiff to determine whether there was objection to his presiding over said cause. Plaintiff indicated there had been an incident in the past that may prevent his being assigned to the case, but at the time all the facts could not be recalled. 3. Plaintiff advised Judge Marsh that there was more than one cause of action filed in the said court and he indicated that he would be presiding over such actions. However, there has never been any order consolidating the other action into 77-1540, or any order from the 6th Administrative Region assigning Judge Marsh to the other case filed in said court, Cause No. 87-5225. j. Thereafter, 'plaintiff indicated that he had no objection to Judge Marsh presiding aver Cause No. 77-15j0. [Emphasis supplied]. The motion to recuse was signed and sworn to by Richard on June 23, 1995. Waiver We disagree with Richard that the provisions of § 74.053(b) and (c) do not apply to challenges under § 74.053(d). Even an objection to a “former” judge, as opposed to a “retired” judge, must be timely. The objection must be the first matter presented to the visiting judge for a ruling. Morris v. Short, 902 S.W.2d 566, 569 (Tex.App.—Houston [1st Dist.] 1995, writ denied). This requirement imposes an obligation on the complaining litigant to urge the objection at the commencement of the first hearing if it has not already been determined by the visiting judge stepping aside or by the administrative presiding judge directing the visiting judge to step aside. The objection must be presented to the assigned judge and ruled upon as a preliminary matter before the visiting judge is prohibited from hearing the case. Texas Employment Commission v. Alvarez, 915 S.W.2d 161, 164-65 (Tex.App.—Corpus Christi 1996, no writ). Because the protections of § 74.053 are nonconstitutional, the available objection is subject to waiver and must be presented and ruled upon to trigger any mandatory prohibition. Id. While we consider the letter to Judge Moody to be a timely written objection, we conclude Richard waived his entitlement to the statutory strike. He admittedly told Judge Marsh that he had no objection to his hearing matters arising from Cause No. 77-1540. After the telephone conversation, Richard forwarded to Judge Marsh motions and setting requests arising from both Cause No. 77-1540 and Cause No. 87-5225. Richard appeared at a hearing on April 6. He has not brought forward a reporter’s record of that proceeding, nor has he ever suggested, through sworn testimony or otherwise, that he presented any objection to Judge Marsh presiding over Cause No. 87-5225 at the beginning of that hearing. Judge Marsh testified that Richard did not present any objection at any point during the April 6 hearing; in fact, the record reflects that he did not advise Judge Marsh of any complaint until the end of the June 23 hearing when he mentioned a motion to recuse. Once Judge Marsh presided over the April 6 hearing, which encompassed both Cause Nos. 77-1540 and 87-5225, without Richard urging his objection, he waived his entitlement to the statutory strike. Later efforts to cure his error, through the portions of the motion to re-cuse addressing § 74.053, the subsequent motion to challenge visiting judge, filed November 17, 1995, and the last objection to visiting judge, dated November 30, 1995, were untimely and of no avail. The Motion To Recuse The Grounds On June 29, 1995, Richard filed a motion to recuse Judge Marsh alleging: • Judge Marsh demonstrated bias against Richard such that he cannot preside fairly over the proceedings; and • Judge Marsh had personal knowledge of a disputed fact in the ease and cannot preside fairly over the proceedings. In support of these allegations, Richard alleged that he had been a defendant in an action styled Alamo Pipe and Supply v. Richard L. Chandler, Individually, and d/b/a Skyline Plumbing and Hardware which was filed in the 243rd Judicial District Court when Judge Marsh was the presiding judge: Plaintiff had knowledge that plaintiff Alamo was represented by attorney Robert T. Schwarzbaeh, who, prior to Judge Marsh’s taking the bench was in the partnership of Schwarzbaeh — Gade— Marsh. After a hearing in the Alamo case, attorney Gade was advised by plaintiff that Judge Marsh may be asked to recuse himself because of his prior relationship with Alamo’s attorney. Thereafter, plaintiff was advised of Judge Marsh’s displeasure with the re-cusal suggestion. About 1985, plaintiff was seeking an injunction against Rachel Chandler preventing her from receiving direct payment of his retired pay. At that time she was represented by Weldon S. Copeland, Jr. who is also a third-party defendant in Cause No. 77-1540. On the date for the 1985 injunction hearing the judge of the 41st district court was not available and Judge Marsh was asked to hold the hearing which concerned Army retired pay. After some discussion of the injunction Judge Marsh declined to hear the injunction on the basis that plaintiff raised his association with Alamo and had suggested his recusal. In this case, the same injunction has again been presented to Judge Marsh and he simply refuses to rule on it in any manner. The Hearing A hearing on the motion to recuse was held on September 13, 1995 before Judge Rivera. Richard testified in accordance with the allegations set forth in the motion. In turn, Judge Marsh testified: The original reason for his objection to me, I mean, that February letter where he mentioned some involvement with that ’77 case, I guess it was, I think that case is up there on your bench— And I looked through it at one point. I found one order that I had signed in that case as presiding for Judge MeKel-lips, and it says Herb Marsh, Jr., and written under it, ‘presiding,’ which means it was something Judge McKel-lips had done and I was just signing it because he was gone or something. That’s all it was. That’s all it indicates. I don’t recall — I have no recollection at all of anything ever — even that, I had to find that to even refresh my memory on that. But I heard no part of that case and I don’t recall ever being asked to hear part of the case. And all the file reflects, I believe, is that I signed this one order, may have been setting a hearing or may have been denying an injunction or whatever. I signed it for Judge McKellips as presiding on something he’d already done. That’s the only action I’d taken. And as to my knowledge, that’s the only contact I’ve ever had with that ease at all. The Ruling At the conclusion of the hearing, Judge Rivera announced her ruling: The Court finds that the objection filed by Mr. Chandler or the letter sent to Judge Moody by Mr. Chandler, if it states an objection, was waived by Mr. Chandler, and that he submitted to the court’s jurisdiction, or to Judge Marsh’s presiding over the matter, and thus, any objection was waived. And the Court further finds that Mr. Chandler has not shown clearly or any legal basis for the Court granting the motion to recuse that I’m taking up here this afternoon, or no legal basis or grounds for the granting of the motion to recuse. A written order denying the motion was signed on October 9, 1995. It provides: On the 13th day of September, 1995, Plaintiffs Motion to Recuse and Disqualify Judge was heard and considered by the Court, and after considering the evidence presented in support of the Motion to Recuse and Disqualify Judge, the Court finds that there is not sufficient evidence to grant Plaintiffs Motion. IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiffs Motion to Recuse and Disqualify Judge is hereby denied. In his second point of error, Richard asserts that it was an abuse of discretion for the trial court to deny his motion. Standard of Review The standard of review for the denial of a motion to recuse is whether the trial court abused its discretion. Aguilar v. Anderson, 855 S.W.2d 799, 801 (Tex.App.—El Paso 1993, writ denied). The test for an abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Id. The fact that the trial court decided the issue differently than the reviewing court would have does not indicate an abuse of discretion. Id. Nor does a mere error in judgment rise to such a level. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In some instances, Texas appellate courts have applied the reasonable person standard in determining whether a recusal motion should have been granted. Ludlow v. DeBerry, 959 S.W.2d 265, 281 (Tex.App.—Houston [14th Dist.] 1997, n.p.h.); Aguilar v. Anderson, 855 S.W.2d at 804-05 (Osborn, J. concurring opinion). A reasonable person standard is appropriate because the rule provides for recusal where a judge’s impartiality might reasonably be questioned. Tex.R.Civ.P. 18b(2)(a). However, in applying the reasonable person standard, it must be determined whether the alleged act indicating bias or impartiality emanated from an extrajudicial source. Ludlow, 959 S.W.2d at 281. The United States Supreme Court discussed the “extrajudicial source” doctrine in Liteky v. U.S., 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Ludlow, 959 S.W.2d at 271. Although the Court was construing the federal disqualification rule, it contains essentially the same language as Rule 18b. The Court stated that opinions formed by the judge on the basis of facts introduced or events occurring during proceedings do not constitute a basis for a recusal motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Id. Thus, the Supreme Court reasoned that judicial remarks during the course of a trial that are critical or disapproving or even hostile to counsel, parties, or their cases, ordinarily do not support recusal. Id. Such remarks may do so if they reveal an opinion deriving from an extrajudicial source and such remarks will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. Id. In determining whether to apply the extrajudicial source rule when a litigant cites Rule 18b(2)(a), a court must consider the facts upon which recusal is sought. Ludlow, 959 S.W.2d at 282. Here, Richard complains of Judge Marsh’s testimony at the recusal hearing. Richard asserts that “Judge Marsh’s opposition was extraordinary and openly aligned him with appellees and against Richard.... ” Regardless of how a litigant phrases his motion to recuse or on which section of Rule 18b(2) he relies, the extrajudicial source rule applies to a recusal motion, such as the one in this case, that targets judicial statements regarding the case and made during the course of proceedings. Ludlow, 959 S.W.2d at 282-88. The fact that Judge Marsh gave testimony in contravention of Richard’s allegations does not demonstrate anything other than factual disagreement. Impartiality Applying the extrajudicial source rule to the facts of this case, Richard has not demonstrated an abuse of discretion. The actions he complains about arose during the recusal hearing, and he has not shown that these statements emanated from any source other than the judge’s opinion based on his perception of the evidence presented. None of the statements by Judge Marsh indicate such a “high degree of favoritism or antagonism as to make fair judgment impossible.” Ludlow, 959 S.W.2d at 283, citing Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. In fact, after a complete review of the record of the recusal hearing, we can find no statements made by Judge Marsh which would “openly align” him -with Rachel. Judge Marsh gave a procedural recitation, but he made no statements in favor of or against either of the parties. Richard also contends that Judge Marsh’s “opposition and active participation in the recusal proceedings can only lead to his recusal.” In support of his contentions, Richard cites to Monroe v. Blackmon, 946 S.W.2d 533, 538 (Tex.App.—Corpus Christi 1997, no writ) and Blanchard v. Krueger, 916 S.W.2d 15 (Tex.App.—Houston [1st Dist.] 1995, orig. proceeding). His reliance is misplaced. In Monroe, a litigant sought the recusal of the trial judge because the opposing counsel represented the judge in a separate proceeding. In Blanchard, the trial judge who was the subject of the recusal action took the extraordinary step of filing a general denial and request for attorney’s fees, thus becoming a party to the underlying suit. At that point, the judge’s disqualification was mandatory inasmuch as he had become a party to the suit and was seeking damages in the form of attorney’s fees. That is not the case here. Merely testifying at a hearing does not constitute “active participation.” Further, we disagree with Richard’s suggestions in this Court that the basis for his motion to recuse was constitutional disqualification. “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.” Tex. Const, art. V, § 11. To warrant constitutional disqualification, a judge’s “interest” must be a direct pecuniary or property interest in the subject matter of the litigation. Palais Royal, Inc. v. Partida, 916 S.W.2d 650, 658 (Tex.App.—Corpus Christi 1996, orig. proceeding). While a judge’s ability to be fair is an appropriate issue for consideration in a recusal action under the Texas Rules of Civil Procedure, “fairness” is not a consideration in constitutional disqualification. Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 558 (Tex.App.—Beaumont 1993, writ denied). We conclude that it was not an abuse of discretion for Judge Rivera to deny Richard’s motion to recuse on the basis of impartiality. Failure to Allow Richard to Develop Record Richard next contends that Judge Rivera abused her discretion by failing to allow him to develop a record to support his motion. At the inception of the hearing, the following exchange between Richard and the court took place: JUDGE RIVERA: Would you announce for the record, sir, your name. CHANDLER: Yes, ma'am. Name is Richard Chandler. And I’m pro se and I’m— JUDGE RIVERA: All right. Would you please present your evidence to the Court, sir. CHANDLER: Does the Court wish that I take the stand to be sworn to enter the evidence, or can I just enter the evidence? JUDGE RIVERA: What is your evidence going to consist of? CHANDLER: I have about 12 or 13 exhibits. JUDGE RIVERA: First of all, let’s focus on what it is that you are representing to the Court. Thereafter, Richard proceeded to outline his case for approximately six pages in the record. At no time during the hearing did Richard attempt to offer any exhibits into evidence even though he had ample opportunity to do so. Richard made no complaint during the hearing that he was not allowed to present his evidence or exhibits. In fact, during the course of the hearing, Judge Rivera asked Richard several times if he had anything to add, at which time he had the opportunity to expand on his case. Since Richard failed to complain to the trial court and obtain a ruling on his complaint, he has failed to preserve the issue for appellate review. Tex.R.App.P. 33.1(a)(1). Oral Order vs. Written Order Richard’s next contention is that the order entered October 9, 1995 is substantially different from the finding announced at the hearing. This argument is without merit. As we have detailed above, the motion was denied on the basis that Richard failed to present sufficient evidence in order for the court to grant his motion. The record indicates that Judge Rivera stated that “the Court further finds that Mr. Chandler has not shown clearly or [given] any legal basis for the Court granting the motion to recuse ... or no legal basis or grounds for the granting of the motion to recuse.” The order entered on October 9, 1995, states that “after considering the evidence presented in support of the Motion to Recuse and Disqualify Judge, the Court finds that there is not sufficient evidence to grant Plaintiffs Motion.” While the verbiage is not exactly the same, we cannot find that it is substantially different. Both the oral order and the written order deny the motion on the grounds that Richard failed to produce evidence which would support the court’s granting of the motion. Further, Richard’s reliance on Keim v. Anderson, 943 S.W.2d 938 (Tex.App.—El Paso 1997, no writ) is misplaced. Keim addressed the issue of the oral rendition of judgment. Judge Rivera did not render judgment on the merits, she ruled on a pretrial motion. Inaccurate Case Number Richard complains that the order denying the motion to recuse was entered in Cause No. 87-5225. He suggests that this was improper and implies it constitutes error because Judge Rivera knew that Judge Marsh was only assigned in Cause No. 77-1540 and that the motion to recuse was filed in Cause No. 77-1540. Throughout the pendency of this case, there has been confusion regarding the case numbers. The record is replete with pleadings on file having one case number while others have both case numbers. The motion to recuse was filed under Cause No. 77-1540, while the order denying the motion was filed under Cause No. 87-5225. We have already concluded that the general assignment of Judge Marsh encompassed both causes of action. Any discrepancy was merely a de minimus typographical error. Inasmuch as error, if any, was de minimus, it was harmless and does not invalidate the order. Ex parte Benitez, 590 S.W.2d 704, 707 (Tex.1979); Ex parte Williams, 866 S.W.2d 751, 754 (Tex.App.—Houston [1st Dist.] 1993, no writ). Findings of Fact and Conclusions of Law Richard’s final contention regarding the denial of his motion to recuse is that the trial court erred in failing to file findings of fact and conclusions of law as requested. In Point of Error Three, Richard presumably is arguing that the judgment must be reversed because the trial court failed to issue separate written findings of fact and conclusions of law. We disagree. A party may request that the court file its findings of fact and conclusions of law in any case tried without a jury. Tex. R.Civ.P. 296. The purpose of the rule is to give a litigant the right to findings of fact and conclusions of law following a conventional bench trial on the merits. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997). In other cases findings and conclusions are proper, but a party is not entitled to them. Id. A hearing on a motion to recuse is not a “case tried without a jury;” it is purely a pretrial matter. While findings in certain pretrial and post-trial matters may be helpful, they are not required. Osborn v. Osborn, 961 S.W.2d 408, 411 n. 3 (Tex.App.—Houston [1st Dist.] 1997, pet. denied) (hearing on motion for new trial is not a “case tried ... without a jury,” but findings can be helpful); IKB Industries (Nigeria) Ltd., 938 S.W.2d at 442 (findings not required where judgment rendered as sanction for discovery abuse, but findings for imposing sanctions may be helpful). In a case like this one in which an order is entered denying the motion to recuse, findings for denying the motion may be helpful, but they are not required. Id. As a practical matter, they are often unnecessary, and requiring them in every case would unduly burden trial courts. Id. Even if we were to decide that Richard was entitled to findings, we would conclude that any error was harmless. As a general rule, the failure of the trial court to file findings of fact constitutes error where the complaining party has complied with the requisite rules to preserve error. Martinez v. Molinar, 953 S.W.2d 399, 401 (Tex.App.—El Paso 1997, no pet.); Wagner v. Riske, 142 Tex. 337, 342, 178 S.W.2d 117, 119 (1944); FDIC v. Morris, 782 S.W.2d 521, 523 (Tex.App.—Dallas 1989, no writ). There is a presumption of harmful error unless the contrary appears on the face of the record. Martinez, 953 S.W.2d at 401; City of Los Fresnos v. Gonzalez, 830 S.W.2d 627 (Tex.App.—Corpus Christi 1992, no writ). Thus, the failure to make findings does not compel reversal if the record before the appellate court affirmatively demonstrates that the complaining party suffered no harm. Martinez, 953 S.W.2d at 401; Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984). Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Martinez, 953 S.W.2d at 401; Guzman v. Guzman, 827 S.W.2d 445 (Tex.App.—Corpus Christi 1992, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex.App.—Houston [14th Dist.] 1990, writ denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W.2d 499, 501-02 (Tex.App.—San Antonio 1994, writ denied)(failure to file findings and conclusions harmless where the basis for the court’s ruling was apparent from the record). The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against him. Sheldon Pollack Corp. v. Pioneer Concrete of Texas, Inc., 765 S.W.2d 843, 845 (Tex.App.—Dallas 1989,-writ denied); Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.). In this case, we need not guess as to the reason the trial judge ruled against Richard in his motion to recuse. The order (both oral and again as written) clearly states that the motion was denied on the basis that Richard failed to present sufficient evidence. Therefore, the order of the trial court properly identified the basis of its ruling and it was not error for the trial court to refuse to file separate findings of fact and conclusions of law. Having found that the appointment of Judge Marsh was proper, that it was not an abuse of discretion to deny the motion to recuse and that it was not error for the trial court to refuse to file findings of fact and conclusions of law regarding the hearing on the motion to recuse, we overrule the first three points of error. NO VARIANCE EXISTS In Point of Error Four, Richard contends that the trial court erred in entering its written order of May 12, 1997 without having set aside its oral rendition of judgment announced at the conclusion of the hearing on March 14,1997. Specifically he argues that “the oral judgment of March 14th was final and the trial court could not entertain a motion for summary [sic] after the time for filing a motion for new trial expired which was April 13, 1997.” In support of this argument, he once again cites us to Keim, 943 S.W.2d at 942. In Keim, the trial court had granted interim attorney’s fees in favor of Mrs. Keim’s attorney, which were only paid by Dr. Keim in part. On June 20, 1995, Kathleen Anderson, Mrs. Keim’s attorney, withdrew of record. Ten days later, the parties appeared with their attorneys in open court and announced a Rule 11 stipulation, which was filed of record. The stipulation did not include the requirement that Dr. Keim pay the interim attorney’s fees which had previously been ordered. During the prove-up of the agreement, both of the parties testified that they had entered into the agreement after consultation with their respective attorneys. The agreement encompassed conservatorship, child support, and the division of marital assets. No one mentioned the resolution of the temporary orders or the order for interim fees. The trial court accepted the stipulation and granted the divorce. Later that afternoon, Anderson filed a petition in intervention, seeking to enforce the interim fee award. On July 31, 1995, Mrs. Keim filed a motion for entry of judgment in accordance with the stipulated agreement. Dr. Keim objected to the untimeliness of Anderson’s intervention. Following a hearing, the trial court overruled the objection to the intervention, took judicial notice of the prior interim fee award, and ruled that the interim fee order had not been withdrawn by the stipulation and that it would be included in the final decree of divorce. On appeal, Dr. Keim contended that the trial court could not alter the parties’ stipulated agreement, upon which the trial court had rendered judgment, without setting aside the prior ruling. This Court first determined that judgment had been orally rendered at the June 30 hearing, that Anderson’s intervention could not be filed or considered after judgment unless the prior judgment was set aside, that the trial court had not set aside the prior judgment before considering the petition in intervention, and that reversible error had occurred. The oral rendition of judgment accepting and approving the stipulated agreement of the parties differed from the final written order. It was the variance that was impermissible. We concluded that “[i]f an appellate court determines that the decree contains terms and provisions dividing the community property that were never agreed to by the parties, it must reverse the judgment and remand the cause.” Id. at 946, citing In the Matter of the Marriage of Ames, 860 S.W.2d 590, 594 (Tex.App.—Amarillo 1993, no writ). However, when the record reflects merely a clerical variance between a judgment announced in open court and the judgment eventually signed by the trial court, an appellate court may modify the judgment to correct the mistake. Keim, 943 S.W.2d at 946, citing McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex.App.—Dallas 1992, writ denied). In comparing the oral pronouncement with the written final order here, we find no fatal variance, and Richard points us to none. Lastly, we disagree with Richard that the trial court lost plenary power on April 13, 1997. Pursuant to Tex.R.Civ.P. 329b(d), the trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is- signed. Accordingly, Judge Marsh was well within its plenary power when the final judgment was signed on May 12. Point of Error Four is overruled. SUMMARY JUDGMENT In Points of Error Five, Six, and Ten, Richard asserts that the trial court erred in granting Rachel’s motion for summary judgment, in denying his own motion for summary judgment and in denying his motion to declare his marriage to Rachel void. Richard’s motion, filed under both Cause No. 77-1540 and No. 87-5225, sought summary judgment on “his entire claim” and specifically requested a finding that: • direct payment of the military retirement benefits by USAFAC to Rachel violates both USFSPA and the terms of the decree of divorce; • the Chandler marriage is void; • the decree of divorce is void; and • the final judgment in the bill of review action is void. Rachel sought summary judgment on the basis that Richard could not recover on any of his requests for declaratory judgment because his claims were barred by res judicata. As to his request for clarification of the divorce decree, Rachel contended Richard lacked standing and that there had been no unintended results because of the Army’s direct payment of the benefits to her. She also alleged that the direct payment provisions of USFSPA were applicable to the divorce decree. Lastly, Rachel and her attorneys sought summary judgment as to Richard’s suit for conspiracy, fraudulent concealment, and breach of fiduciary duty on the basis that the statute of limitations barred his claim. The standard of review upon appeal of a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mutual Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.—El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. Nixon, 690 S.