Saturday, July 14, 2007

Order Granting Grandparent Access to Grandchild Affirmed

Ramona Casas et al. v. Felipe Adriano et al., No. 13-06-00373-CV (Tex.App.- Corpus Christi, Jul. 5, 2007)(Opinion by Justice Vela)(dispute between two sets grandparents; no parent conservator appointed)
Appeal from 92nd District Court of Hidalgo County (affirmed)

Memorandum Opinion by Justice Rose Vela

This is an appeal from an order granting paternal grandparents, Felipe and Maria Adriano (the Adrianos), possession and access to their minor grandchild, F.A. By three issues, Ramona Casas, F.A.'s maternal grandparent, and Claudette Casas, F.A.'s biological mother (collectively "the Casases"), complain that the trial court abused its discretion by granting the Adrianos access to and possession of F.A., by not ordering statutorily required warnings in its order granting access, and in excluding the testimony of a non-disclosed witness. We affirm.

I. Background

F.A., the child subject of this suit, was born December 16, 2000. In 2002, his biological parents, Felipe Adriano Jr. and Claudette Casas, were arrested on charges of physical abuse of F.A.'s five month old sister, who sustained severe physical injuries and later died as a result of those injuries. According to the record, F.A.'s parents were unable to explain the injuries and were arrested for the infant's death. F.A.'s father was subsequently found guilty of the infant's murder and was sentenced to 25 years in prison. F.A.'s mother, Claudette, who was also incarcerated for a short period of time, pled guilty to the offense of injury to a child, and received a community supervision sentence.

In 2003, the trial court terminated the parental rights between F.A. and his father as a result of his father's conviction for the murder of F.A.'s infant sister. Several months later, the court entered a final order in a suit affecting the parent-child relationship. In that order, the court found that "appointment of a parent or both parents as managing conservator would not be in the best interest of [F.A] because the appointment would significantly impair the child's physical health or emotional development." Instead, the court appointed F.A.'s maternal grandmother, Ramona Casas (Claudette Casas' biological mother), as permanent managing conservator of F.A, and appointed F.A.'s mother, Claudette Casas, as possessory conservator of the child, with rights of access to and possession of F.A. At that time, the trial court did not award visitation to any "non-parties," which included F.A.'s paternal grandparents, the Adrianos.

In February 2005, the Adrianos filed an original petition for grandparent access to F.A. In September 2005, the trial court signed an "Order Granting Petitioners' Request for Temporary Grandparent Access, Setting Status Conference and Setting of Final Hearing." In that order, the Adrianos were permitted to visit F.A. one hour per week, from 4:00 p.m. to 5:00 p.m., at the offices of Solis & Associates in Edinburg. The order also required the Adrianos to pay Solis & Associates two-hundred fifty dollars before any visitation period.

On March 28, 2006, the trial court conducted a bench trial on the issue of the Adrianos' possession of and access to F.A. After receiving evidence and hearing testimony, the trial court granted the Adrianos' petition for possession of and access to F.A., and specifically found that "denial of possession and access to the paternal grandparents (the Adrianos) would significantly impair the child's physical health or emotional well-being." The order stated that the Adrianos "are granted the child as follows:"

First, Third and Fifth Saturdays of each month from 10:00 to 6:00 p.m. The paternal grandparents shall pick up the child at the residence of Ramona Casas at the commencement of the visitation period, and the child shall be returned to the residence of Ramona Casas at the end of the visitation period. It is further ordered, that any and all paternal grandparent possession/access shall terminate upon the release of Felipe Adriano, Jr. from prison. (Emphasis added)

It is from this order that Ramona and Claudette Casas appeal.

II. Absence of Findings of Fact and Conclusions of Law

Before discussing the issues raised, we point out that findings of fact and conclusions of law were neither requested nor filed following this bench trial. In such situations, the judgment of the trial court implies all necessary findings to support it, provided the proposition is raised in the pleadings, supported by evidence, and the trial judge's theory is consistent with the evidence and the applicable law. Schoeffler v. Denton, 813 S.W.2d 742, 744 (Tex. App.– Houston [14th Dist.] 1991, no writ); Franklin v. Donoho, 774 S.W.2d 308, 311 (Tex. App.–Austin 1989, no writ). When, as in this case, a reporter's record is part of the record, the legal and factual sufficiency of the implied findings may be challenged on appeal in the same manner as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.–Houston, [1st Dist.] 1997, no pet.). When the implied findings of fact are supported by the evidence, the appellate court must uphold the judgment on any theory of law applicable to the case. Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.–Houston [1st Dist.] 1992, no writ).

III. Analysis

By their first issue, the Casases complain that the trial court abused its discretion by granting the Adrianos possession of and access to F.A. because the best interest of the child demands that the Adrianos comply with the requirements of the Texas Grandparent Statute. Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2006). The Casases further argue that the testimony presented at trial was legally insufficient to support the trial court's ruling, and that the ruling granting possession and access was so against the great weight and preponderance of the evidence that the trial court's only finding "fails to be factually sufficient."

IV. Standard of Review

The trial court's decision in a suit for grandparent access and possession is reviewed for abuse of discretion. See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Scoggins v. Trevino, 200 S.W.3d 832, 836 (Tex. App.–Corpus Christi 2006, no pet.). Review of the legal and factual sufficiency of the evidence in a possession or access case is subsumed into the review for abuse of discretion. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.–Texarkana 1998, no pet.); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.–Austin 1997, no pet). Thus, legal and factual insufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Doyle, 955 S.W.2d at 479; Scoggins, 200 S.W.3d at 836. Where sufficiency review overlaps with the abuse of discretion standard, the reviewing court engages in a two-pronged inquiry. Sandone v. Miller-Sandone, 116 S.W.3d 204, 206 (Tex. App.–El Paso 2003, no pet.) First, the court determines whether the trial court had sufficient information upon which to exercise its discretion. Id. Second, the appellate court evaluates whether the trial court erred in applying its discretion. Id.

V. Governing Law

To obtain access and possession in a grandparent access case, a petitioner must prove, by a preponderance of the evidence, that:

1. At least one of the child's biological or adoptive parents has not had rights terminated.

2. The child's physical health or emotional well-being would be significantly impaired if the
grandparents' access or possession were denied.

3. The grandparent is the parent of the child's parent.

4. Any of the following is true:

(1) The child's parent has been incarcerated for at least three months before the petition was filed.
(2) The child's parent has been judicially declared incompetent.
(3) The child's parent is dead.
(4) The child's parent does not have actual or court-ordered possession of or access to the child.

Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2006).

The Casases do not dispute that the Adrianos meet all but one of the statutory requirements to bring a grandparent access case. They focus only on the requirement of Section 153.433(2), which states that the trial court must find that the child's physical health or emotional well-being would be significantly impaired if the grandparent's access or possession were denied. The Casases contend that the trial court abused its discretion in finding, by a preponderance of the evidence, that denying the Adrianos possession and access to F.A. would significantly impair F.A.'s physical health or emotional well-being. (1) Grandmother Casas, the appointed primary managing conservator, acknowledges that she does not enjoy the presumption that Mother Casas does when it comes to the applicability of the grandparent access statute. However, she argues that because she is the managing conservator of F.A., she has the rights and duties specified in the Texas Family Code, including the duty of "care, control, protection, and reasonable discipline of the child," along with "the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care." See Tex. Fam. Code. Ann. § 153.371(2)-(3) (Vernon 2006). She argues that in order to fulfill her responsibility of ensuring proper physical health and emotional well-being of the child, she must also ensure that the Adrianos meet the requirements set forth in the grandparent access statute–that the denial of access to or possession of F.A. to the Adrianos would significantly impair the child's physical health or emotional well-being. Tex. Fam. Code Ann. § 153.433(2).

V. The Evidence

At trial, Mr. Adriano testified that F.A. is "part of my blood, my family, and we really love him because we helped raise him since he was little." He stated that F.A. lived with the Adrianos for nearly a year, and that he and his wife took care of F.A. He further stated that they (the Adrianos) "don't want to lose family contact with him," and "all the family loves him, not just us." He testified that when he and his wife visited F.A. at the firm of Solis & Associates, F.A. " . . . didn't want us to leave. He didn't want to be alone. In fact, he had to be held back by Ms. Casas because he wanted to stay with us. He wanted--he wanted to go in the truck with me . . . . He would hug us. He would kiss us. And he even called me dad, and he calls her (Mrs. Adriano) mom."

In later testimony, Mr. Adriano stated that F.A. was "well off" when he was living with the Adrianos. Further testimony elicited from Mr. Adriano revealed the following: "The child never had any problems with us . . . . He was 100 percent well regarding his health and everything, just full of life. And the last time I saw him, he was more, like, crestfallen and kind of sickly . . . . The last time I saw him I saw signs that he was being affected because he was more used to being with my side of the family . . . . So I think that he would get better if he got the chance to see us, to see me." Mr. Adriano testified that he had previously complained to child protective services that when the Casases delivered F.A. to the Adrianos during any visitation period, F.A. was "dirty" and the milk in his bottle was "rotten."

Beatrice Salinas, the Adrianos' daughter, testified that F.A. had numerous cousins who lived close to the Adrianos, that F.A. was close to his cousins, and that the Adrianos have half an acre of land where all of the children played together. She further testified that F.A. was "a part of their life," that F.A. "loves them (the Adriano grandparents) so much, he calls them mom and dad." She concluded her testimony by pointing out that "[H]e's part of our life. He needs to know that he has more family besides them that love him and are going to care for him, and that we miss him. He needs to know that we're out there for him."

The trial court made the following observations in making its ruling:

I think it would be more harmful to this–let's say that, this child is five years old right now, okay, and let's say the thought is, let's wait four, five years before these paternal grandparents have any access to this particular child. Ok. You've got to remember that this particular child is five, by the time he's ten, okay, it may be more harmful in order for that particular child to start to develop a relationship with the paternal grandparents at the age of ten than it is at the age of five . . . . But you know, you need to focus on truly what's in the best interest of this child. And I don't know whether cutting the paternal grandparents out of this particular child's life is in fact the best interest of the child . . . that's a decision that is so contrary to what I truly, truly believe would be beneficial to the child."

It is clear from the trial court's comments that its focus was the best interest of the child, pursuant to its duty under the Texas Family Code. Tex. Fam. Code Ann. § 153.002 (Vernon 2002) ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."). We note that the trial court did not give the Adrianos unlimited or even overnight visitation with F.A.; it only allowed the Adrianos to see F.A. on the first, third, and fifth Saturdays of each month for an eight hour period. Further, the trial court specifically interlineated a safeguard into the order that provides that "any and all paternal grandparent possession/access shall terminate upon the release of Felipe Adriano, Jr. from prison."

From the evidence adduced, the trial court could have reasonably concluded that F.A.'s health and emotional well-being would be significantly impaired by denial of access. F.A. had previously resided with the Adrianos and was close enough to them that he considered them his "mom" and "dad." It appears that the trial court considered this close prior relationship in making a decision regarding access. It was within the court's realm of discretion to infer that a break in a close familial relationship could seriously affect F.A.'s emotional well-being. Further, the trial court could have decided that the deprivation of love, care, and affection from one-half of the child's family would cause significant impairment to the child's emotional well-being.

After conducting a review of the legal and factual sufficiency of the evidence, we cannot say that the trial court abused its discretion by finding that the Adrianos showed by a preponderance of the evidence that denial of their possession of and access to F.A. would significantly impair the child's physical health or emotional well-being. See Derzapf, 219 S.W.3d at 333. Issue one is overruled.

By their second issue, the Casases contend that the trial court abused its discretion by failing to order safeguards, including statutorily required warnings, in the final order granting possession of F.A. The record reflects, however, that these proposed statutory "safeguards" were not requested of the trial court. The Casases have not preserved this point for appellate review.
Tex. R. App. P. 33.1. Issue two is overruled.

By their third issue, the Casases assert that the trial court abused its discretion by excluding the testimony of F.A.'s child psychologist, and therefore failed to consider the best interest of the child when entering its final orders. The Casases concede that the psychologist in question, Dr. Mary Elizabeth De Ferreire, was not disclosed as a testifying witness during the discovery process.

A trial court's decision to exclude testimony from a witness not previously disclosed during discovery can only be overturned upon a finding of an abuse of discretion. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994). After a review of the record in this case, we find no abuse of discretion by the trial court not permitting the non-disclosed witness to testify. Appellants' third issue is overruled.

The trial court's judgment is affirmed.


Memorandum Opinion delivered and filed this 5th day of July, 2007.

1. The premier case governing grandparent access is Troxel v. Granville, 530 U.S. 57 (2000). Troxel held that a parent has a fundamental right to decide who has access to a child, assuming the parent is "fit." See id. at 66. The Troxel Court described a fit parent as one who "adequately cares" for his or her children. Id. at 68. In this case, Troxel does not apply because neither parent is presumed "fit," and this case is essentially a dispute between both maternal and paternal biological grandparents. We reach this conclusion based on the evidence in the record that F.A.'s father was convicted of murder, and the trial court specifically found that "appointment of a parent or both parents as managing conservator would not be in the best interest of [F.A.] because the appointment would significantly impair the child's physical health or emotional development."

Full Style of case: RAMONA CASAS AND CLAUDETTE DENIZ CASAS v. FELIPE ADRIANO AND MARIA ANGELA ADRIANO (Tex.App.- Corpus Christi, July 5, 2007)(Vela)(grandparent suit, SAPCR)
Appeal from 92nd District Court of Hidalgo County

Thursday, July 12, 2007

No-Show Lawyer Sanctioned

Ninth Court of Appeals Upholds Sanctions Imposed on Attorney Who Failed to Appear for Mediation and Trial

In the Interest of J.V.G, No. 09-06-00015-CV (Tex.App.- Beaumont)(Opinion by Justice Kreger)
Disposition: Judgment of 221st District Court of Montgomery County affirmed

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 98-12-04437-CV


This is an appeal from an order in a suit affecting the parent-child relationship. Petitioner, Vilma Estela Stibolt ("Vilma"), sought to modify her divorce decree, which was final in 2000, apparently to provide her greater custodial access to her child, J.V.G., as appellant/respondent, Constantino Gaeta ("Constantino"), was initially named sole managing conservator of J.V.G. Trial counsel for Vilma was appellee, Laura D. Dale, while Constantino was represented by appellant, M. Elena Navarro.

A jury trial resulted in both Constantino and Vilma being named joint managing conservators, with Constantino retaining the right to designate the primary residence of J.V.G. Several months later, the trial court ruled on two remaining issues: attorney's fees and sanctions. Specifically, the trial court awarded Vilma attorney's fees in the amount of $40,000, with interest at 5%. The trial court also found certain pretrial conduct by Constantino's attorney, Ms. Navarro, necessitated the awarding of sanctions to Vilma's counsel, Ms. Dale, in the amount of $5,000, with interest at 10%.

Only Constantino and Ms. Navarro have perfected appeal. Constantino has not filed a brief or given reasonable explanation for such failure, nor attempted to pursue his appeal any further. See Tex. R. App. P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex. App.--San Antonio 1998, no pet.). Ms. Navarro has raised six issues for our consideration limited to the propriety of the trial court's imposition of sanctions and the award to Ms. Dale.

We begin with Ms. Navarro's sixth issue as it raises concerns of lack of trial court jurisdiction to enter the sanctions order and procedural default on the part of Ms. Dale in relation to the timing of the trial court's sanctions ruling. Initially, Ms. Navarro contends that because the May 17, 2005, modification order was a final judgment, the sanctions order, signed November 23, 2005, is void as being outside the period of the trial court's plenary powers. However, appearing within the modification order is the following language: "IT IS ORDERED that the attorney's fees and sanctions in this matter have been reserved and will be heard at a later date to be determined by the Court." An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Although the order also contains language commonly referred to as a "Mother Hubbard Clause," the trial court clearly intended for the order not to be final for purposes of appeal by its explicit reservation of "attorney's fees and sanctions in this matter." See id. at 200 ("The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.").

Further support for the interlocutory status of the May 17, 2005, modification order appears when we examine the record before us, as Lehmann instructs. See id. at 205-06 ("To determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case.").

During the September 8, 2005, sanctions hearing, counsel for Ms. Navarro argued that because all of Ms. Navarro's conduct in question took place prior to trial, Ms. Dale waived any complaint for sanctions by failing to secure a ruling prior to commencement of the jury trial, citing as authority Remington Arms Company, Inc. v. Caldwell, 850 S.W.2d 167 (Tex. 1993). Ms. Dale responded by pointing out the explicit reservation of the attorney's fees and sanctions issues by the court in the May 17, 2005 order. Also recalling the pretrial circumstances regarding the sanctions issue, the trial court responded with the following:

THE COURT: Because that, in fact, was the case. Because they wanted it heard and I thought the best thing to do was get the case over with and then we'll deal with the lawyers because the parties needed to be dealt with. . . . But I'm thinking that it's kind of like in a family law case you -- any sanctions regarding pretrial orders are waived because they are superceded by the final order. However, this was discussed at length and that I said I had -- Ms. Dale asked for a hearing and I did not allow her to have a hearing because I said I was going to hear it later.
[Counsel for Ms. Navarro]: Judge, if she had filed -
THE COURT: So, for that reason -- so for that reason I am going to deny your request to not hear it. So, we are going to hear it.

The possibility of seeking sanctions against Ms. Navarro was raised well before the start of the jury trial in May with the February 25, 2005, filing of Ms. Dale's motion to depose Ms. Navarro regarding her failure to appear at a scheduled mediation, a pre-trial conference and, a previous scheduled trial date.

We find the facts and circumstances in the instant case distinguishable from the particular holding announced in Remington Arms, and relied upon by Ms. Navarro. Remington Arms involved whether post-trial "death penalty" sanctions for pretrial discovery abuses were proper. See Remington Arms, 850 S.W.2d at 170. The Supreme Court determined "that the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct." Id. "Waiver is defined as 'an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.'" Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). Since the trial court acknowledged that Ms. Dale requested the sanctions matter be heard but the court, in its discretion pursuant to Tex. R. Civ. P. 174, ordered a separate trial regarding attorney's fees and sanctions, we decline to find any waiver of any claim for sanctions. As has been observed, "[i]nterrupting the proceedings on the merits to conduct sanctions hearings may serve only to reward a party seeking delay." See Chambers v. NASCO, Inc., 501 U.S. 32, 56, 111 S.Ct. 2123, 2139, 115 L.Ed.2d 27 (1991).

As the trial court explicitly reserved the issues of attorney's fees and sanctions in the May 17, 2005, modification order, no final, appealable judgment was entered until the sanctions order was signed on November 23, 2005. (1) "While we agree that a judgment does not have to resolve pending sanctions issues to be final, that principle does not control this case. Even if a sanctions order is not required to be included in a final judgment, it may be included there." Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). Therefore, the trial court retained jurisdiction to enter the sanctions order when it did and issue six is overruled.

Under her fourth issue, Ms. Navarro would have us hold the sanctions order reversible because the trial court "failed to make specific findings that anything [Ms. Navarro] did significantly interfered with the core functions of the trial court." In reviewing an order imposing sanctions, appellate courts are not bound by a trial court's findings of fact and conclusions of law; rather, reviewing courts must independently review the entire record to determine whether abuse of discretion has occurred. See American Flood Research, 192 S.W.3d at 583 (citing Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992)). Indeed, any "findings of fact" by a trial court made in support of its sanctions order are not to be treated on appeal as findings made under Tex. R. Civ. P. 296, which usually are reviewed for legal and factual sufficiency. See Mills v. Ghilain, 68 S.W.3d 141, 145 (Tex. App.--Corpus Christi 2001, no pet.) (citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)). Rather, findings made by the trial court following imposition of sanctions are used only to assist the reviewing court in determining whether an abuse of discretion has occurred. Mills, 68 S.W.3d at 145. As previously noted, we independently review the entire record in making this determination. See Blackmon, 841 S.W.2d at 852.

In support of its sanctions order rendered against Ms. Navarro, the trial court made the
following findings:

A. M. Elena Navarro, unilaterally cancelled mediation without notice to Petitioner or to this
Court causing expense to Petitioner who appeared at mediation.

B. M. Elena Navarro failed to appear at the preferentially set Docket Call with all required documents as ordered by this Court.

C. M. Elena Navarro, counsel for Respondent, following a denial of her Motion for Continuance one week before jury trial, failed to appear on the date of trial as ordered by this Court. She alleged her father was critically ill. It later was revealed he had checked out of a hospital some three days before trial.

D. M. Elena Navarro failed to contact the court to reschedule the trial setting immediately on returning from the visit with [her] father as directed by this Court.

E. M. Elena Navarro has engaged in a pattern of dilatory trial behavior preventing this matter from coming before this Court in a timely and cost effective manner.

We have previously observed that certain statutory and code provisions in Texas permit a trial court to issue sanctions upon proof of certain acts or omissions engaged in by a party to litigation. See In the Interest of A.C.J., a Child, 146 S.W.3d 323, 326 (Tex. App.- -Beaumont 2004, no pet.) Ms. Dale's sanctions allegations, however, did not involve frivolous pleadings or discovery abuse, nor was the trial court's sanctions order based upon such findings.

The source of a trial court's authority to impose sanctions upon counsel comes from recognizing that courts possess inherent power to discipline an attorney's behavior. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding). Indeed, a court has the inherent power to impose sanctions on its own motion under appropriate circumstances. Id. In Bennett, the Court acknowledged its earlier observation that a court possesses inherent power "'which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity.'" Id. (quoting Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99 (Tex. 1979)); see also Public Utility Comm'n of Texas v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988).

We review a trial court's imposition of sanctions for an abuse of discretion. American Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A ruling imposing sanctions will be reversed only if the trial court "acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). In determining whether an abuse of discretion has occurred, the appellate court must ensure that the sanctions were appropriate or just. See American Flood Research, 192 S.W.3d at 583 (citing TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 916 (Tex. 1991)). This requires reviewing courts to conduct a two-part inquiry: 1) the reviewing court must ensure that there is a direct relationship between the improper conduct and the sanction imposed (whether punishment was imposed upon the true offender -- the party, its counsel, or both -- and tailored to remedy any prejudice the sanctioned conduct caused); and 2) the reviewing court must make certain that less severe sanctions would not have been sufficient to promote compliance. See American Flood Research, 192 S.W.3d at 583 (citing Powell, 811 S.W.2d at 917).

Navarro's argument is inapposite to the standards for reviewing the imposition of sanctions set out immediately above. Additionally, a trial court's "core functions" have been found to include "the management of its docket and the issuance and enforcement of its orders." See In the Interest of K.A.R., 171 S.W.3d 705, 715 (Tex. App.--Houston [14th Dist.] 2005, no pet.). We are directed by the Texas Supreme Court to independently review the entire record so as to ensure the sanctions imposed "were appropriate or just." American Flood Research, 192 S.W.3d at 583. Therefore, the fact that sanctionable conduct does not bear the label, either individually or collectively, of having "interfered with the core functions of the trial court," does not indicate an abuse of discretion so long as the record indicates a direct relationship between the improper conduct and the sanction imposed, and that a lesser sanction would have been insufficient to serve its punitive function. We therefore overrule Ms. Navarro's fourth issue.

We also overrule the first part of issue five which complains that the sanctions order does not conform to the motion for sanctions. We have previously held an appellant may not complain that the judgment does not conform to the pleadings if raised for the first time on appeal. See A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d 852, 854 (Tex. App.--Beaumont 1997, no pet.). This is especially the case when only a partial reporter's record is filed by the appellant because the reviewing court cannot determine if the appellant secured a ruling on the issue at trial. See Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 473 (Tex. App.--Dallas 2003, pet. denied) (citing A.V.A. Servs., Inc. v. Parts Indus. Corp., 949 S.W.2d at 854). As noted above, statements made by the trial court during the September 8, 2005, hearing on attorney's fees and sanctions indicate the sanctions issue had been discussed at prior proceedings involving the parties and the trial court. Additionally, as no motion for new trial was filed by Ms. Navarro, the trial court was not given the opportunity to rule on either the judgment conformity issue or the post-judgment interest issue. As a portion of issue five has not been properly preserved for review, it is overruled. See Tex. R. App. P. 33.1(a).

We now turn to issues one through three. Ms. Navarro starts by correctly noting the proper legal standard for reviewing the imposition of sanctions as abuse of discretion, but then proceeds to address the first three findings of the trial court under a somewhat subjective legal/factual sufficiency standard. Additionally, while apparently conceding the trial court's authority to impose sanctions under its inherent powers, Ms. Navarro contends that such sanctions are limited to only those instances where "bad faith abuse of the judicial process" is proven. "Bad faith" may indeed be one basis for imposing inherent authority sanctions, but a survey of pertinent cases demonstrates broader considerations are involved when reviewing the propriety of sanctions imposed. In Chambers v. NASCO, Inc., the Supreme Court characterized a court's "inherent authority" in the following terms:

It has long been understood that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution," powers "which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.". . . For this reason, "Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates." . . . These powers are "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."
. . . .
Because of their very potency, inherent powers must be exercised with restraint and discretion. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process. As we recognized in Roadway Express, outright dismissal of a lawsuit, which we had upheld in Link, is a particularly severe sanction, yet is within the court's discretion. Consequently, the "less severe sanction" of an assessment of attorney's fees is undoubtedly within a court's inherent power as well. . . . [A] court may assess attorney's fees as a sanction for the "'willful disobedience of a court order.'" . . . [A] court may assess attorney's fees when a party has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'". . . The imposition of sanctions in this instance transcends a court's equitable power concerning relations between the parties and reaches a court's inherent power to police itself, thus serving the dual purpose of "vindicat[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent's obstinacy."Chambers, 501 U.S. at 43, 45-46 (citations omitted).

The Supreme Court in Chambers upheld sanctions imposed by a federal district court under its inherent powers because of fraud perpetrated on the court by the defendant and for "bad faith [defendant] displayed toward both his adversary and the court throughout the course of the litigation." Id. at 54. In In re K.A.R., the court of appeals affirmed the imposition of sanctions for $13,000 in fees and expenses in a modification suit against the petitioner and his trial counsel as the record supported the trial court's finding of the "unilateral cancellation of a court-ordered mediation without adequate notice" by petitioner and his counsel. See In re K.A.R., 171 S.W.3d at 709, 715. Bad faith played no part in this holding as the appellants did not challenge the trial court's finding that their conduct constituted bad faith. See id. at 712 n.3. Nevertheless, the court of appeals recognized that a trial court's inherent authority included the power to manage its docket as well as "the issuance and enforcement of its orders." Id. at 715. In that case, when petitioner's trial counsel decided to cancel the court-ordered mediation session because the petitioner had informed her over a week earlier that he would not be there, without then making an attempt to immediately cancel or postpone the mediation, or timely inform opposing counsel of this development in an attempt to mitigate their inconvenience and expense, trial counsel "effectively usurped the court's role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, [trial counsel] interfered with a core function of the court." Id.

In Roberts v. Rose, 37 S.W.3d 31 (Tex. App.--San Antonio 2000, no pet.), the court of appeals upheld sanctions imposed only on trial counsel, Roberts, totaling $1,250 for failure to appear at a scheduled mediation session, and for failure to notify opposing parties of the intent not to attend mediation or to confirm a possible scheduling conflict. See id. at 33, 35. As in the instant appeal, Roberts raised error by the trial court in imposing sanctions when there was neither an allegation nor a finding of bad faith as to him individually. Id. at 34. The court of appeals responded that Roberts was not sanctioned for failing to mediate in good faith, but for failing to appear at the scheduled mediation and for his other omissions. Id. Citing to Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex. App.--Houston [1st Dist] 1992, no writ), the court of appeals noted that while parties cannot be forced to peaceably resolve their disputes through dispute resolution procedures, "a trial court can compel the parties to sit down with each other." Id. To further emphasize the breadth of the trial court's inherent authority to sanction, the court of appeals then cited to Gleason v. Lawson, 850 S.W.2d 714, 717 (Tex. App.--Corpus Christi 1993, no writ), which held that a trial court has authority to sanction a party for failure to attend a court-ordered settlement conference. Id.

The Roberts court also noted with approval the fact that the trial court specifically engaged in a determination of whether the offensive conduct in question was attributable to Roberts only, or to the client (Murr) only, or to both. Id. at 34-35. See also Wetherholt v. Mercado Mexico Café, 844 S.W.2d 806, 808 (Tex. App.--Eastland 1992, no writ). The trial court attributed the offensive conduct to Roberts only and the court of appeals set out the supporting evidence in the record as follows:

[T]he trial court determined that the attorney, Roberts, was chiefly to blame for both Murr's having missed the mediation and the following hearing. It was Roberts's failure to keep in regular contact with his client that led directly to both of these events. . . . T[he] evidence reflected that Murr was willing and eager to participate in his own case, if given the opportunity.
The only evidence of bad faith is not in Murr's failure to appear at the mediation or at the subsequent sanctions hearing, but in Roberts's deliberate acts of bad faith throughout his representation of Murr. Roberts's habitual failure to keep his client informed during the litigation, ultimately amounting to a missed mediation session resulting in sanctions against Murr, indicates bad faith on the part of Roberts, rather than Murr. Because the individual most responsible for the infraction is to be sanctioned, the trial court's ruling which only assessed sanctions against Roberts, was not an abuse of discretion and should be affirmed according to the first prong. Wetherholt, 844 S.W.2d at 808. Similarly, the second prong which mandates that the sanction be fair in light of the harm done and conducive to effectuating the tripartite goals of discovery is also met. The sanctions are not outrageously punitive, and will hopefully prevent Roberts and other attorneys like him from abusing their positions and their clients' trust. Roberts, 37 S.W.3d at 34-35.

In further support for upholding the sanctions, the record also indicated that, in addition to failing to inform his client, Murr, of the court-order mediation, Roberts, upon discovering his personal schedule conflicted with the mediation time, faxed a letter to the mediator advising him of the conflict. Id. at 33. Thereafter, Roberts made no attempt to confirm the scheduled mediation had been postponed, nor did he make any further attempts to reschedule the mediation session. Id. No abuse of discretion by the trial court in Roberts was shown.

Also instructive is the rationale given by the court of appeals in upholding sanctions against a defendant-insurance carrier in light of evidence of its serious pretrial misconduct in Kings Park Apartments, Limited v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, 101 S.W.3d 525, 539-42 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (discovery abuse included, inter alia, paralegal instructed by National Union and its attorneys to steal documents from the chambers of the special trial judge; sanctions included requiring National Union to pay $25,000 to the Texas Center for Legal Ethics and Professionalism). In addressing King Park's appellate complaint that the sanctions were "toothless, and largely symbolic," the court of appeals stated:

[T]he allegation that National Union instructed a paralegal to steal documents from the chambers of the special trial judge may be viewed as a [sic] interference with the traditional core functions of the court. Based on this allegation, therefore, the trial court had the authority to enter sanctions under its inherent power. . . .

Here, the trial court indicated, in relation to its ruling under its inherent powers, that the circumstances made an award of attorneys fees to Kings Park unjust. The court specifically stated why it did not award attorney's fees: "This has been a very contentious case, and Kings Park's expenditure of attorney's fees was self-inflicted in an attempt to gain information to use in other cases." Moreover, the sanctions order stated that the trial court "considered the offensive conduct and attempted to craft sanctions appropriate to punish that conduct." We believe that the trial court was in the best position to do so, especially in light of the fact that many sanctions hearings had been held. We hold that the trial court did not abuse its discretion in imposing the sanctions under its inherent power and in denying attorney's fees.
Id. at 541-42.

In the instant case, the conduct of Ms. Navarro under scrutiny dated from early January of 2005, up to the day of trial in early May of 2005. Sworn testimony indicated that on January 6, 2005, while present along with Ms. Dale at the Dispute Resolution Office (DRO) after being ordered to mediate, Ms. Navarro, upon checking her electronic calendaring device, agreed to a mediation session on January 12, 2005. At that time, Ms. Navarro did not advise Ms. Dale or the trial court that she was set to begin a criminal jury trial in Harris County the following day, January 7, 2005. In addition to mediation, the parties were also scheduled on January 12 for a docket call at which time certain pretrial discovery was to have been exchanged as the jury trial was to have commenced on January 18, 2005.

Although Ms. Navarro assumed her criminal jury trial would be finished well before the January 12 mediation/docket call date, jury selection actually began on January 10, and Ms. Navarro had no explanation why she waited until January 11 to initially inform Ms. Dale of these events and orally request a continuance, which Ms. Dale refused. Ms. Navarro admitted that she was one of two attorneys appearing for the defense in the criminal trial, but she was somewhat unclear as to which attorney was lead-counsel for the criminal defendant. It was only during jury deliberations in the criminal trial that Ms. Navarro first telephoned, then faxed, her motion for continuance to the trial court. Although Ms. Navarro's motion for continuance was denied by the trial court, she participated in the docket call proceeding via telephone. Her absence led to the late exchange of certain discovery documents (January 14), while other discovery was not provided to Ms. Dale until the day before trial was to begin.

On the day of trial, January 18, 2005, Ms. Navarro again failed to appear, and again failed to timely notify Ms. Dale. Ms. Navarro apparently left a "message" by telephone with the trial court that her father was seriously ill in Mexico and that she would not be appearing for trial. A non-lawyer in Ms. Navarro's office apparently was present on January 18 when rescheduling of the jury trial was discussed with the trial court and Ms. Dale. On January 20, 2005, the trial court faxed a letter to Ms. Navarro's office requesting that she contact the court to reschedule the trial "[a]s soon as you return[.]" The trial court's letter further contained the following request: "I think it appropriate for you to supply the court with documentation to support your absence from Trial, for the record."

The first contact Ms. Navarro had with the trial court following the trial date was by way of a letter her office faxed to the court along with Ms. Navarro's affidavit, which she intended to serve as proof of her "emergency" as requested by the court. The pertinent portion of her affidavit reads as follows:

On Tuesday, January 18, 2005, I was informed that my father was critically ill. My father currently resides in Nueva Ciudad Guerrero, Tamaulipas, Mexico. I had to leave the country immediately in order to be with my father and was unable to be present on the trial date for the Gaeta matter. As an officer of the court, I am submitting this affidavit in response to the court's request for documentation to support my absence from trial. Because of the highly personal nature relating to my father's illness, I sincerely hope this affidavit suffices to support the proof of emergency.

Ms. Navarro supplied the trial court with copies of documents from Mexico related to her father's medical condition as well as a copy of her credit card account indicating charges for the dates in question and a copy of a prepaid phone card used by Ms. Navarro while in Mexico. Although Ms. Navarro failed to submit the medical documents with English translation, Ms. Dale had them translated. These documents raised further controversy as they appeared to indicate that Ms. Navarro's father's medical condition manifested itself much earlier than January 17, and indeed appeared to have subsided by January 18. During the colloquy between the parties and the trial court Ms. Navarro attempted to place her exhibits in their proper context, viz:
MS. NAVARRO: Well, Judge, I'm saying -- I wanted to make sure that the Judge -- the Court understood that my dad was hospitalized on the 14th, released on the 15th. He went to the doctor on the 16th again in Zacatecas and he was released on the 16th.
THE COURT: Okay. Tell me that chronology again.
MS. NAVARRO: He was hospitalized on the 14th and then he was released on the 15th around 2:00 o'clock. He was still in Zacatecas on the 16th when he -- again was seen by a doctor. And on that day he was kept under observation for 24 hours so he was actually released on the 17th.
THE COURT: From where?
MS. NAVARRO: From the doctor in Zacatecas.
MS. NAVARRO: He returned back to his home town because he wanted to be at his home whenever he thought he was going to pass away. That's where he wanted to be in his home with his family. So he arrived back at the house around 7 -- the 17th and that's when the family was notified that we had to be over there because he was very ill and we thought -- they thought he was not going to make it. So that's when my brother came to my house, let me know that my dad was ill which was in the early hours on the 18th or late on the 17th and that's when I headed over there, Judge. So I just want to make sure that -- that the Court understands he was not there in his home town when all of this happened so we could not -- we did not know what was going on in this time period.
MS. DALE: Your brother didn't go, did he?
. . . .
MS. NAVARRO: I didn't say he [Navarro's brother] didn't leave on the 18th. He left that day because we met -- we -- all the family met together at my father's house.
THE COURT: Okay. What documentation do we have to that effect about the -- your father's chronology?
MS. NAVARRO: Well, Judge, her translations of the documents are the only ones -- the only translations. But the Spanish documents are attached to the response -
MS. NAVARRO: -- as an exhibit.
. . . .
MS. NAVARRO: I am not denying I went to Zapata, Judge. That's where the majority of my family lives. It is 20 minutes away from where my father lives in Mexico. You just have to cross the border to get to the other side and the town is right across from there. When I went over there our family was leaving, coming, just as he was starting to get better or just visiting with him. So, yes, I went back with my family to Zapata. I am not denying that. I took money out. I needed cash. I went to the ATM and that shows that I took money out.
. . . .
MS. DALE: You visited a friend. Sorry. You stayed at a hotel. The hotel is on the pulse card receipt on the 24th or 25th.
THE COURT: 25th.
MS. DALE: There you have it, you were -- so all of this time we certainly didn't get a call from Ms. Navarro.
MS. NAVARRO: Judge, when -- y'all had that court hearing on the 18th when I was gone and Valerie participated. That's my assistant. She told me that Ms. Dale had requested that we start the following week and that you had said is (sic) there was another jury trial already scheduled for that week so my understanding was that we were not going to start the following week.
As a final evidentiary note, the record indicates that pretrial scheduling orders were issued as early as September 26, 2004, and the following order appearing in bold print directly under date for the January 12, 2005, docket call: "Appearance at Docket Call is Mandatory! Any party that fails to appear at Docket Call will be subject to appropriate sanctions which may include striking of pleadings and/or the exclusion of some or all of that party's evidence."

We have independently reviewed the entire record presented by the parties. American Flood Research, 192 S.W.3d at 583. On this record we cannot say the trial court abused its discretion in imposing sanctions against M. Elena Navarro. The credibility of the testimony and the amount of weight to be given any particular item of evidence was for the trial court alone. The trial court had inherent power to aid it in the preservation of its independence and integrity. In re Bennett, 960 S.W.2d at 40; Eichelberger, 582 S.W.2d at 398. In the instant case, the trial court was confronted with several instances of conduct on the part of Ms. Navarro during the course of the underlying modification litigation that, when taken together, could be found to have significantly interfered with the court's management of its docket as well as the issuance and enforcement of its orders. See In re K.A.R., 171 S.W.3d at 715.

We echo the sentiments of the court of appeals in Kings Park Apartments in that the trial court was in the best position to consider the offensive conduct in question and to craft sanctions appropriate to punish that conduct. See Kings Park Apartments, 101 S.W.3d at 542. The $5,000 sanction imposed against Ms. Navarro alone is not excessive under the record presented. Moreover, the sanction punishes the "true offender" while a lesser amount would have lacked the measure of punishment intended by the court. See American Flood Research, 192 S.W.3d at 583. Issues one, two, and three are overruled.

Lastly, the second part of Ms. Navarro's fifth issue complains the trial court erred in awarding post-judgment interest of 10% on the sanctions amount. She points out that the finance code limits interest rates under a general money judgment to not more than 5%. See Tex. Fin. Code Ann. § 304.003 (Vernon 2006). However, Ms. Navarro was required to present this complaint to the trial court prior to raising it as an appellate issue. See Tex. R. App. P. 33.1; Goodson v. Castellanos, 214 S.W.3d 741, 760 (Tex. App.--Austin 2007, pet. filed); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.--Houston [14th Dist.] 2005, pet. denied), cert. denied, 127 S.Ct. 666 (2006). Our review of the record fails to turn up any complaint by Ms. Navarro to the trial court as to its calculation of post-judgment interest on the sanctions amount. Therefore, this particular complaint under Ms. Navarro's fifth issue has not been preserved for appellate review and is overruled.

We dismiss appellant Constantino Gaeta's appeal for want of prosecution. And, as we have overruled each of appellant M. Elena Navarro's issues regarding the sanctions imposed on her, we affirm the trial court's judgment in all respects.

Submitted on November 16, 2006
Opinion Delivered July 12, 2007

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Recall that the sanctions order was signed the day after the order disposing of the attorney's fees issue.
Full style of case: In the Interest of J.V.G.--Appeal from 221st District Court of Montgomery County

Wednesday, July 11, 2007

Appeals court rejects contingent child support and custody provisions

San Antonio Court of Appeals eliminates decree provisions making payment of child support and custody/possession dependent on the distance of mother's residence and disapproves of measuring distance by estimated drive time; strikes complained-of provisions on void-for-vagueness grounds.

In the Interest of D.A.I., (Martin J. Ippel) v. Maria Borazjani No. 04-06-00434-CV (Tex.App.- San Antonio (Jul. 11, 2007)(Opinion by Justice Hilbig)(contingent SAPCR provisions stricken)
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-06855
Honorable Barbara Hanson Nellermoe, Judge Presiding
Disposition on appeal: Challenged provisions of trial court's order reversed and judgment rendered


This is an appeal from a final order in a suit affecting the parent-child relationship. The trial court named parents Maria Borazjani and Martin J. Ippel joint managing conservators of their minor child. Martin was given the exclusive right to establish the child's primary residence and direct his education. Martin appeals the trial court's award to Maria of $300.00 per month in child support to be used as a rent supplement in the event she moved her residence within a certain proximity of his residence and the alternative possession orders based on the location of Maria's residence. We reverse and render.


Maria and Martin met in 1996. They did not marry, but in 1998 had a child, D.A.I. The parties had what can only be described as an off-again-on-again relationship from 1996 through 2004-sometimes residing together, sometimes not. In 2004 their relationship ended. Martin filed suit to establish paternity and conservatorship. Maria filed suit to resolve issues of conservatorship, support, and possession. The suits were consolidated by agreement.

Following a bench trial, the court found Martin was the father of D.A.I. and named the parties joint managing conservators. The court awarded Martin the exclusive right to establish the child's primary residence and to direct the child's education. The court restricted the child's primary residence to the geographic boundaries of the North East Independent School District. In the next paragraph of its order, the court ordered that Martin maintain the child's residence:
. . . within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas, if at any time MARIA BORAZJANI has moved to maintain her primary residence within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas. (1)

The court entered alternate possession orders dependent upon Maria's residency. If Maria resides "within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas," then she and Martin have possession of D.A.I. on alternating weeks. If not, the Family Code's standard possession order applied. The trial court also conditioned an award of child support on Maria's residency. Maria would receive child support of $300.00 per month if she maintained her principal residence within the prescribed time limit. According to statements by the court, the purpose of the child support was for use as a housing supplement to permit Maria to live close to D.A.I.'s school. (2)


Martin raises two issues on appeal alleging the trial court erred in (1) ordering him to pay child support to Maria because the support ordered was really impermissible spousal maintenance, and (2) entering alternate possession and support orders based on Maria's residency. Because our disposition of Martin's second issue regarding alternate possession orders disposes of this appeal, we need not address his first issue.

In family law cases issues such as conservatorship, possession, and child support are evaluated against an abuse of discretion standard. Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.-San Antonio 2003, no pet.). "A trial court abuses its discretion if it acts without reference to guiding rules or principles (legal issues), or acts arbitrarily or unreasonably (factual issues)." Gardner v. Gardner, 04-06-00218-CV, 2007 WL 1341186, at *1 (Tex. App.-San Antonio May 9, 2007, n.p.h.); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).


In his second issue, Martin complains the trial court erred in entering portions of its final order because they are impermissibly indefinite, void for vagueness, and constitute an impermissible advisory opinion. We agree the complained of portions of the order are indefinite and vague; however, we disagree that they constitute an advisory opinion. (3)

Martin first contends the relevant provisions of the order are invalid because they are conditional or contingent upon future events. Texas law has long held that a judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights so the judgment can be executed without reference to facts not stated within the judgment. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994); Steed v. State, 143 Tex. 82, 183 S.W.2d 458, 460 (1944).

Thus, a judgment cannot condition recovery on uncertain events or base its validity on what parties might do post-judgment. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (per curiam).

In Hale v. Hale, this court was presented with a similar issue. No. 04-05-00314-CV, 2006 WL 166518, at *3-4 (Tex. App.-San Antonio Jan. 25, 2006, pet. denied) (mem. op.). In that case the trial court ordered a father to pay child support in accordance with the statutory guidelines. Id. at *3. However, the court also ordered the father to pay an additional amount of child support in the event the mother and child were evicted from the family home, which was owned by the father's parents. Id. On appeal, the father argued the trial court abused its discretion in entering this contingent portion of the final decree. Id. Relying on the law requiring judgments to be definite and certain, we held the complained of portion of the decree was not sufficiently definite because the father had no way of knowing if he would be required to pay the extra child support because the mother might or might not be evicted in the future. Id. at *4.

Portions of the order in this case are similarly indefinite because Martin has no way of ascertaining if he will be required to pay child support or which part of the order regarding possession applies because the order is contingent upon Maria's future actions. The provisions of the order contingent upon the location of Maria's residence cannot be executed without determining facts not stated within the order itself and thus are invalid. (4)

Martin also contends these same portions of the order are void for vagueness. We agree. Defining a residency requirement by way of a timed drive is nebulous, even when limited to a general time and day of the week. The vagaries of traffic change daily and this suggested standard is not sufficiently precise to be reliable. Moreover, the order in no way defines how an "average" is to be determined. Accordingly, we hold the trial court abused its discretion in fixing terms of possession and child support based on an average drive-time. In light of the indefiniteness and vagueness of the complained of portions of the order, we sustain Martin's second issue.


The portions of the order requiring Martin to pay Maria $300.00 in child support as a housing supplement, as well as the portions of the order basing possession on Maria's residency, are indefinite and vague. Thus, they must be stricken from the trial court's final order.

We reverse the trial court's judgment and render judgment accordingly.

Steven C. Hilbig, Justice

1. This residency restriction would be expanded to Bexar County generally if Martin decided to remove the child outside the "20-minute average 7:30 a.m. weekday driving time" from Hardy Oaks Elementary and Maria did not reside within the designated area. It would be further expanded beyond Bexar County if Martin decided to move outside Bexar County and Maria did not reside within Bexar County.

2. While the court's order obviously included other provisions relating to conservatorship, possession, and support, we need not detail those here as they are not relevant to any issue on appeal.

3. Texas courts do not have the authority to render judgments that constitute mere advisory opinions. Patterson v. Planned Parenthood of Houston & Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998). The separation-of-powers doctrine prohibits courts from issuing advisory opinions. Texas Ass'n of Tex. Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945); Texas Ass'n of Bus., 852 S.W.2d at 444. "An advisory opinion is one which does not constitute specific relief to a litigant or affect legal relations." Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 401 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (quoting Lede v. Aycock, 630 S.W.2d 669, 671 (Tex. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.)). Here, there was an actual controversy between the parties concerning possession and support and while the court's order might be erroneous, it did not merely decide an abstract question of law that had no binding effect. Thus, the portions of the order complained of by Martin did not constitute an impermissible advisory opinion.

4. Nothing in this opinion precludes the parties from entering into an agreement by which they would operate, without court intervention, under the provisions altering support and possession based on Maria's residency. Similarly, this opinion does not prevent Maria from seeking relief under the provisions of the Family Code governing modification. See Tex. Fam. Code Ann. § 156.001, et seq. (Vernon 2002 & Vernon Supp. 2006).



Full style of case: In the Interest of D.A.I., (Martin J. Ippel) v. Maria Borazjani
Appeal from 166th District Court of Bexar County

Tuesday, July 10, 2007

Corpus Christi Appeals Court Affirms Clarification Order

Thirteenth Court of Appeals holds that clarification order did not go beyond divorce decree provisions to alter the substance of the judgment, and affirms; rejects sanctions request finding that appeal was not frivolous.

Amador D. Hinojosa v. Mary E. Hinojosa, No. 13-06-00684-CV (Tex.App.- Corpus Christi, July 5, 2007)(Vela) (clarification order did not not make substantive change to the decree)
Appeal from 214th District Court of Nueces County
AFFIRMED: Opinion by Justice Vela
Before Chief Justice Valdez, Justices Benavides and Vela


Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Justice Vela

This appeal arises from an objection to an order of clarification issued by the trial court in response to claimed ambiguities in the final decree of divorce between appellant, Amador D. Hinojosa, and appellee/former wife, Mary E. Hinojosa. By one issue, Amador argues that the trial court abused its discretion by entering a clarification of the parties' final decree of divorce that substantively altered the division of property not originally awarded in the decree.

Specifically, Amador asserts that substantive changes exist a) in the imposition of a deed of trust on appellant's separate property, b) in the division of the $18,000 money judgment to Mary as reimbursements, and c) in awarding post-judgment interest on the money judgment above. Mary urges that Amador filed a frivolous appeal and requests associated damages. We affirm the judgment of the trial court and deny Mary's motion for sanctions.


Amador and Mary's divorce decree was signed on April 26, 2004. The relevant provisions of the final decree provided:

1. The home located on Fawn Ridge Drive is confirmed as the separate property of Amador Hinojosa.
2. Consistent with the Rule 11 Agreement between the parties, Mary is awarded a $4,000 money judgment against Amador, to be paid in installments of $1000 every 90 days beginning on or about July 23, 2004.
3. The Court awards Mary an $18,000 money judgment against Amador, to be paid in monthly installments of $500 beginning on the first day of the month following the final payment of the $4,000 money judgment.
4. The $18,000 money judgment is secured by a Deed of Trust to be executed and delivered by Amador to Mary within ten days of signing the final decree of divorce.

Neither party appealed the divorce decree. Amador later filed for bankruptcy. Counsel for Mary informed the trial court that the federal bankruptcy court requested a clarification of Mary's $18,000 money judgment and security interest in the Fawn Ridge property. The bankruptcy court allowed Mary to proceed with a motion for clarification and to obtain a deed of trust for the security interest.

Thereafter, Mary filed a Motion for Clarification of Prior Order regarding the provisions above. The trial court granted a clarification order on November 13, 2006. The clarification order's relevant provisions provided:

1. Mary is awarded an $18,000 security interest in the Fawn Ridge residence, payable in accordance with the terms of the decree to be executed with interest at six percent per year compounded annually from the date of judgment.
2. Amador shall pay to Mary $8,000 representing reimbursement of the down payment for the purchase of the Fawn Ridge property awarded to Amador as his separate property . . .
3. And $10,000 representing reimbursement of the monthly mortgage payments made toward the Fawn Ridge property awarded to Amador as his separate property.
4. This amount ($18,000) is not inclusive of the $4,000 agreed to as a money judgment pursuant to a Rule 11 Agreement entered into by the parties.

Amador appeals the clarification order claiming that it substantively alters the allocations in the divorce decree contrary to Chapter 9 of the Texas Family Code, which, in part, allows for a clarification order only when the division of property is ambiguous. Tex. Fam. Code Ann. § 9.008 (Vernon 2006).

Standard of Review

Whether a divorce decree is ambiguous or sufficiently vague, and therefore in need of clarification, is a question of law that we review de novo. Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex. App.-Corpus Christi 2000, no pet.). A decree is ambiguous if it is not specific enough to be enforceable by contempt. (1) More precisely, ambiguity exists when the document is uncertain, doubtful, or reasonably susceptible to more than one meaning. McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 131 (Tex. App.-Houston [14th Dist.] 2004, no pet.).

The division of property in a divorce action is subject to an abuse of discretion standard. Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). Because trial courts are given wide discretion in the division of property, appeals courts will reverse only where there is a clear abuse of discretion. Id.; Ridgell v. Ridgell, 960 S.W.2d 144, 147 (Tex. App.-Corpus Christi 1997, no pet.). A clear abuse of discretion exists only if the division of the marital estate is manifestly unjust and unfair. Ridgell, 960 S.W.2d at 147.


Appellant Amador raises one issue on appeal: the trial court abused its discretion in clarifying the final decree of divorce because such clarification made a substantive change to the decree in violation of chapter 9 of the Family Code.

In clarifying and enforcing decrees of divorce, the court is limited to assisting in the implementation of the substantive division of property, and may not alter or change such division. Tex. Fam. Code Ann. § 9.007(a) (Vernon 2006). It may also "specify more precisely the manner of effecting the property division previously made . . . ." Id. § 9.006(b) (Vernon 2006). If the court does amend, modify, alter, or change the property division from the final divorce decree, its order is unenforceable. Id. § 9.007(b). "A proper clarification order is consistent with the prior judgment and 'merely enforces by appropriate order the controlling settlement agreement.'" Wright, 32 S.W.3d at 894 (quoting Young v. Young, 810 S.W.2d 850, 851 (Tex. App.-Dallas 1991, writ denied)).

I. Ambiguity

As stated above, ambiguities arise when "the division of property is not specific enough to be enforceable by contempt;" as such, "the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property." Tex. Fam. Code Ann. § 9.008(b). Here, the issue of ambiguity was first raised by the federal bankruptcy court, which modified a stay of its proceedings. The decree of divorce was, at minimum, vague in that it ordered a deed of trust from Amador without specifying to what property the deed was to attach. Also, the $18,000 money judgment awarded to Mary lacked clarity because it did not define how that amount came to be or for what in particular it was awarded. Put simply, the decree was sufficiently vague to warrant a clarifying order and was especially necessitated by the bankruptcy court's stayed proceedings, which awaited an adequately clear divorce decree to continue.

II. Comparison between Decree of Divorce and Clarification

It is helpful to outline what relevant clarifications–that Amador claims are modifications–the trial court made to the divorce decree. First, the court specified in the clarification order that the $18,000 money judgment awarded to Mary was a security interest in the residence on Fawn Ridge Drive, and that Amador was to issue Mary a deed of trust for that security interest. The original decree of divorce did not make these specifications, but only laid out the payment procedure for the $18,000 money judgment, including an unspecific order that Amador give Mary a deed of trust.

Second, the clarifying order, unlike the divorce decree, divided the $18,000 money judgment in two, defining $8,000 as a reimbursement to Mary for the down payment to the Fawn Ridge property and $10,000 as a reimbursement for monthly mortgage payments made toward the same property. This did not alter the substance of the original decree; rather, it clarified how the court reached the sum of $18,000 as a money judgment.

Third, while the divorce decree made no mention of interest on the money judgment, the clarifying order assigned an annually compounded interest of six percent.

III. Appellant's Claims of Prohibited Substantive Changes

A. Deed of Trust on Amador's Separate Property

Requiring a deed of trust on the Fawn Ridge residence, Amador's separate property, does not substantively amend the divorce decree. Amador raises three connected arguments otherwise: 1) that issuing a deed of trust on his separate property changes the distribution of the marital properties originally awarded in the final decree of divorce, and therefore changes his obligations; 2) that this clarification gave more property rights to Mary than first allocated, affecting the confirmation of his separate property as, indeed, separate; and 3) that while the courts have wide discretion in the division of marital estates, that discretion does not extend to divesting a spouse of his or her separate property.

Amador mistakes the purpose of the deed of trust as a transfer in property interest. A deed of trust, similar to a mortgage, acts as a security for an obligation, generally a debt. See Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex. App.-Austin 1996, no writ). It does not, however, effectuate a transfer of property. Rather, it guarantees payment to Mary in the event that Amador defaults on his obligations to reimburse her. See Successors to Interest of Rea-Glass, Inc. v. Allied Corp., 704 S.W.2d 387, 389 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). The deed of trust attached to the Fawn Ridge property because it appears that that is the only property Amador owns with a value large enough to cover the $18,000 money judgment.
Amador's obligation to pay the money judgment remains the same, irrespective of how and to what the deed of trust applies. Because there is no transfer (physical or by title), the Fawn Ridge residence persists as his separate property.

Although Amador is correct in asserting that the trial court's discretion does not extend to divesting a spouse of his separate property, Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977), Mary only has a security interest secured by a deed of trust without any right of possession or ownership. The deed of trust simply "assist[s] in the implementation of . . . the prior order" to guarantee Amador pays the money judgment, Tex. Fam. Code Ann. § 9.007(a); see also id. § 9.006(a), and does not serve to convert or divest him of his separate property.

B. Reimbursement

The court did not act contrary to chapter 9 of the Family Code when specifying that the $18,000 money judgment awarded to Mary was for reimbursements. Amador contends that because Mary did not make any arguments toward or present any evidence of award for reimbursement, and because it was not mentioned in the divorce decree, the trial court abused its discretion by incorporating such language into the clarification order.

The discretion allowed the trial court in evaluating claims of reimbursement is just as broad as its discretion in the division of marital property. See Tex. Fam. Code Ann. § 7.007 (b)(2) (Vernon 2006); see also Penick v. Penick, 783 S.W.2d 194, 198 (Tex. 1988); Kimsey v. Kimsey, 965 S.W.2d 690, 701 (Tex. App.-El Paso 1998, pet. denied). The Texas Supreme Court also held that "the payment by one marital estate of the debt of another creates a prima facie right of reimbursement." Penick, 783 S.W.2d at 196.

It does not appear that the trial judge's clarification of reimbursement was manifestly unjust and unfair as required for abuse of discretion. At the divorce hearing, the court found that the $8,000.00 Mary gave Amador for the down payment of the Fawn Ridge property (in Amador's name) was not a gift, and she was therefore entitled to reimbursement. The court also found that Mary paid $10,000 toward the monthly mortgage payments of the same property, which also created a "prima facie right of reimbursement." Id.

More so, defining the money judgment as two reimbursements does not substantively change the division of marital property because the requirement to pay the money judgment remains the same, including the amount and method of payment. See Able v. Able, 725 S.W.2d 778, 779 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) (holding that "the trial court merely interpreted certain language of the divorce decree awarding appellee reimbursement for a liability assigned to appellant under the language of the decree" even though "reimbursement" was not explicitly referenced in the final decree).

Even if there was a significant change in the order, such as the method of payment, it would still not constitute a modification of Amador's liability, but instead be part of the enforcement as "an order to assist in the implementation of . . . the prior order." McLaurin v. McLaurin, 968 S.W.2d 947, 950 (Tex. App.-Texarkana 1998, no pet.) (quoting Tex. Fam. Code Ann. § 9.007(a)). Hence, this specification of the $18,000 money judgment merely clarified what was already in the decree of divorce.

C. Post-judgment Interest

The imposition of post-judgment interest in the clarification order does not constitute a substantive change from the divorce decree. Amador maintains that the addition of six percent interest (2) in the clarification order is a substantive alteration prohibited by the Family Code.
Post-judgment interest is not and could not be an amendment to a money judgment in a decree of divorce. The interest is automatic and required by statute, even if not specifically awarded or narrated in the judgment. See Tex. Fin. Code Ann. § 304.001 (Vernon 2006); Staff Indus., Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 551 (Tex. App.-Corpus Christi 1993, no writ); see also El Universal, Compania Periodistica Nacional, S.A. de C.V. v. Phoenician Imports, Inc., 802 S.W.2d 799, 804 (Tex. App.-Corpus Christi 1990, writ denied).

Further, the Texas Supreme Court has held that "interest accrues automatically once a court renders its judgment." Office of Attorney Gen. of Tex. v. Lee, 92 S.W.3d 526, 528 (Tex. 2002). Thus, even though the divorce decree does not mention post-judgment interest for the money judgment awarded to Mary, it does not constitute a substantive change in the clarification because, statutorily, interest is inherent in a money judgment.

IV. Appellee's Motion for Sanctions

The court rejects Mary's assertion that Amador filed a frivolous appeal. An appeal is not frivolous if, when the court considers on an objective basis the record, briefs, or other papers filed in the court of appeals, the appellant reasonably expected reversal. Tex. R. App. P. 45; Sossi v. Willette & Guerra, LLP, 139 S.W.3d 85, 89 (Tex. App.-Corpus Christi 2004, no pet.). Amador asserted arguments here that appear to be earnestly raised.

Because Amador's appeal was not frivolous, the court denies Mary's requested damages.


We conclude that the clarification order did not substantively amend, modify, alter, or change the division of property allocated in the decree of divorce. Accordingly, we affirm the trial court's judgment.


Memorandum Opinion delivered and
filed this 5th day of July, 2007.

1. The Texas Supreme Court detailed the requirements of enforceability by contempt:
To support a judgment of contempt, the underlying decree must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed upon him. A court order is insufficient to support a judgment of contempt if its interpretation requires inferences or conclusions about which reasonable persons might differ.Ex parte MacCallum, 807 S.W.2d 729, 730 (Tex. 1991) (per curiam) (citations omitted).

2. Section 304.003 of the Texas Finance Code states that the post-judgment interest rate on a money judgment is the prime rate published by the Board of Governors of the Federal Reserve System at the time of the judgment. While the clarifying order indicated a rate of 6% interest compounded annually, the actual prime interest rate at the time of the final decree of divorce was 4%. The Federal Reserve Board, Selected Interest Rates, (last visited June 8, 2007). However, because Amador did not plead this discrepancy of the rate in his appellate brief, the error is not preserved. See PSB, Inc. v. LIT Indus. Tex. Ltd. P'ship, 216 S.W.3d 429, 436 (Tex. App.–Dallas 2006, no pet. h.).

How to Lose An Appeal

He who represents himself has a fool for a client (and a sure loser for counsel). San Antonio Court of Appeals cuts pro se appellant no slack and confirms the old adage, but declines to impose sanctions.

Sanchez v. Sanchez, No. 04-06-00469-CV (Tex.App.- San Antonio, Jul. 10, 2007)(Hilbig)(SAPCR)


Edward John Sanchez appeals from a final decree of divorce awarding sole managing conservatorship of the children of the marriage to Cynthia Young Sanchez. We affirm.


Cynthia filed for divorce and sought sole managing conservatorship of the couple's four minor children. In her petition she alleged Edward committed family violence, including a pattern of physical abuse directed toward the children. She also wanted the right to designate the children's primary residence without a geographic restriction to Texas so that she could move the children to Mississippi. Edward sought joint managing conservatorship and requested the court to impose a geographic restriction to Guadalupe County and contiguous counties.

Following a bench trial, which included interviewing the four children in chambers, the court granted the divorce and named Cynthia sole managing conservator. The court also imposed a geographic residency restriction for the children to the states of Texas or Mississippi. The trial court found Edward had engaged in a pattern of child neglect as well as physical and emotional abuse directed against Cynthia and the children.

After trial, Edward decided to proceed pro se and filed numerous postjudgment motions, all of which were denied. Edward now brings this pro se appeal alleging numerous errors by the trial court.


Sufficiency of Evidence and Specificity of Findings

In his first four issues it appears Edward is challenging the specificity of the court's findings and contending the court erred in (1) appointing Cynthia sole managing conservator, (2) refusing to impose his requested geographic residency restriction, and (3) rejecting Edward's request for modified summer possession.

We review the trial court's rulings on these issues for abuse of discretion. See Gardner v. Gardner, 04-06-00218-CV, 2007 WL 1341186, at *1 (Tex. App.-San Antonio May 9, 2007, no pet. h.); Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.-San Antonio 2003, no pet.). "A trial court abuses its discretion if it acts without reference to guiding rules or principles (legal issues), or acts arbitrarily or unreasonably (factual issues)." Gardner, 2007 WL 1341186, at *1; see Naguib v. Naguib, 137 S.W.3d 367, 371 (Tex. App.-Dallas 2004, pet. denied). When the proper standard of review is abuse of discretion, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error but are merely factors in determining whether the trial court abused its discretion. Gardner, 2007 WL 1341186, at *1; London v. London, 192 S.W.3d 6, 14 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). In such instances, an appellate court engages in a two-prong analysis to determine (1) whether the trial court had sufficient information upon which to exercise its discretion, and (2) whether the trial court erred in its application of discretion. Gardner, 2007 WL 1341186, at *1; Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.-El Paso 2005, no pet.). In determining whether the trial court had sufficient information, we use the traditional standards of review for legal and factual sufficiency. Gardner, 2007 WL 1341186, at *1; see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002) (setting forth standard of review for legal sufficiency); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (setting forth standard of review for factual sufficiency).

Edward first contends the trial court erred in appointing Cynthia sole managing conservator. He argues the trial court should have appointed the parties joint managing conservators. In light of the evidence and applicable law, we find no abuse of discretion.

Section 153.131 of the Texas Family Code states:

(a) Subject to the prohibition in Section 153.004, unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
Tex. Fam. Code Ann. § 153.131 (Vernon 2002). This section of the Family Code requires the trial court to appoint parents as joint managing conservators because it is presumed that such an appointment is in the best interest of the child. Id. However, the mandate in favor of joint managing conservatorship is subject to two limitations: (1) section 153.004, which precludes a trial court from appointing joint managing conservators if there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse; and (2) section 151.131(b), which removes the best interest presumption if there is a finding of a history of family violence. Id. §§ 153.004(b) (Vernon Supp. 2005); 151.131(b).

In this case, though denied and/or its effects minimized by Edward, there was ample evidence of a history of family violence and credible evidence establishing a history or pattern of child neglect and physical abuse toward the children. Edward admitted placing the children in a closet for up to an hour at a time as punishment. (1) There was evidence Edward placed one of the children in the closet and she remained there, despite having urinated on herself, until Cynthia returned from an errand and heard her crying. According to Cynthia, the same child was placed in the dark closet completely naked on two separate occasions. Cynthia testified Edward backhanded another of the children, knocking him seven to eight feet, because he was dancing around the kitchen when he was supposed to be cleaning. Cynthia testified that incident was not the first time Edward had knocked this child to the ground. Edward admitted striking the child's forehead with his hand causing the child to travel five to six feet. There was also evidence Edward once found crumbs on a table in the living room and flew into a rage, knocking over furniture and yelling at the children. Cynthia's mother testified Edward often flew into rages directed at Cynthia or the children. The oldest child's teacher testified that when the child received a "B" in math, she was so scared to go home and tell Edward that she became physically ill. Cynthia testified that Edward would yell at the child until she cried if she made anything other than an "A." All of the children admitted to their counselor that they were afraid of Edward, though the feeling began to dissipate after the separation. A neighbor, a former San Antonio police officer, testified he believed the children were afraid of Edward based upon his observation of the family and the way the children responded to Edward. There was evidence Edward took most of the children's toys away and ultimately discarded them. He also threw away the trophies each child had earned in karate class. Finally, there was evidence that while Edward was undertaking major home renovations, he refused to remove carpet tacks from the house even after one child had stepped on the tacks more than once. According to Cynthia, Edward's response to her request to remove the tacks was "He'll learn."

The trial court was the fact finder in this case and was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). After reviewing the record, we conclude the trial court had sufficient information to exercise its discretion and did not abuse that discretion in appointing Cynthia sole managing conservator. See Gardner, 2007 WL 1341186, at *1 (using two-pronged inquiry for sufficiency challenged when abuse of discretion standard applies); see also In re Gonzalez, 993 S.W.2d 147, 155 (Tex. App.-San Antonio 1999, no pet.) (holding abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support trial court's decision).

Edward next complains of the trial court's refusal to impose a geographic restriction limiting residency of Cynthia and the children to Guadalupe County and contiguous counties. Instead of imposing the restriction requested by Edward, the trial court imposed a restriction limiting residency to either Texas or Mississippi. Edward contends this was not in the best interest of the children.

The trial court appointed Cynthia sole managing conservator. One of the rights bestowed upon a sole managing conservator is the exclusive right to determine primary residence of the child. Tex. Fam. Code Ann. § 153.132(1) (Vernon Supp. 2006). Any residency restriction imposed on this right is within the trial court's discretion based on the best interest of the child. See id. § 153.002 (Vernon 2002) (stating that best interest of child shall always be primary consideration of court in determining issues of conservatorship, possession, and access). Thus, the question is whether the trial court had sufficient information to determine whether a residency restriction within the states of Texas and Mississippi was in the best interest of the children and whether it abused its discretion in making that determination. See Gardner, 2007 WL 1341186, at *1 (using two-pronged inquiry for sufficiency challenge when abuse of discretion standard applies).

The trial judge heard evidence that Edward had circulated a letter containing unflattering personal information about Cynthia and her family to multiple recipients throughout the community. The letter was sent against the advice of Edward's counsel and his therapist. Cynthia testified she believed that if she and the children were forced to remain in Guadalupe County Edward would send similar letters to any new people with whom she might establish a relationship. The trial court found the letter was designed to "annoy, alarm, harass, embarrass, and shame" Cynthia and make it difficult for her to remain in Guadalupe County or any of the surrounding counties. There was also evidence that Edward had isolated Cynthia while they lived in Guadalupe County so she has no support system there.

Cynthia presented testimony that she and the children would have a fresh start in Mississippi with a support system of friends and family. Cynthia's parents purchased a home for Cynthia and the children in Meridian, Mississippi, which is less than an hour away from the parents' home. Cynthia testified she had toured the school in Mississippi that the children would attend and had talked to counselors about programs for one of the children who has been diagnosed with Asperger's Syndrome-a mild form of autism. She stated the school has after-school care programs that would allow Cynthia to continue her education. She said she has many family members living within an hour or so of Meridian, including her parents and a sister, and that she has cousins living one street over from the house purchased by her parents. She has also met her neighbors and they have two children the same ages as two of her children and have expressed a willingness to assist her as needed. Finally, there was testimony from the children's counselor in which he opined that the children "would be safest in Mississippi."

Though there was evidence showing potential problems with a move to Mississippi and benefits to the children in remaining in Guadalupe County, we hold the trial court had sufficient information to exercise its discretion and did not abuse that discretion in refusing to impose a geographic restriction limiting residency to Guadalupe County and/or contiguous counties.
Edward next complains the trial court erred in refusing to accept his "modified summer possession" plan. In the final decree, the trial court essentially imposed standard summer possession as set forth in the Family Code. See Tex. Fam. Code Ann. §§ 153.312-313 (Vernon 2002 & Vernon Supp. 2006). Given that the parties reside more than 100 miles apart, this entitled Edward to possession of all four children for forty-two days in the summer. See id. § 153.313(3). Edward, however, wanted a modified summer plan whereby he would be awarded possession as follows: (1) twenty-one days with two children; (2) fourteen days with all four children; and (3) twenty-one days with the other two children. Edward claimed this would allow him to give each child the individual attention he or she needed.

Section 153.251(c) of the Family Code states, "It is preferable for all children in a family to be together during periods of possession." Id. § 153.251(c). Joseph Aguillera, the children's counselor, opined that the children should remain together during Edward's periods of access. He stated the children were "a unit" and they felt "more secure together."

In support of his request, Edward points to the report of Dr. Shelley Probber, the court-appointed psychologist asked to evaluate the parents and the children. Edward contends that in her report Dr. Probber had no objection to Edward's plan to take the children two at a time. However, Dr. Probber never testified during the trial and Edward failed to introduce her report. Nevertheless, even if we assume Dr. Probber approved Edward's plan and believed it was in the best interest of the children, this would conflict with the direct testimony of Aguillera, the children's counselor. As previously stated, the trial court was the fact finder and was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. Thus, the court was entitled to accept Aguillera's testimony and reject that of Dr. Probber. Accordingly, we conclude the trial court had sufficient information to exercise its discretion and did not abuse that discretion in imposing standard visitation and refusing to split the children during Edward's periods of possession.

Finally, with regard to the court's findings relating to the issues discussed above, Edward appears to complain that the court's findings are not sufficiently specific. Edward timely requested additional and amended findings, thereby preserving his complaint for appeal. See McDuffie v. Blasingame, 883 S.W.2d 329, 337 (Tex. App.-Amarillo 1994, writ denied) (holding that when party fails to timely request additional or amended findings within ten days after trial court files original findings, requesting party waives right to complain on appeal that findings were not full and complete, or that court failed to enter additional findings of fact). However, a trial court is only required to file additional or amended findings and conclusions that are appropriate. Tex. R. Civ. P. 298. Moreover, additional or amended findings are not required if the original findings "'properly and succinctly relate the ultimate findings of fact and law necessary to apprise [the party] of adequate information for the preparation of [the party's] appeal.'" Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 612 (Tex. App.-Fort Worth 2006, pet. denied) (quoting Balderama v. W. Cas. Life Ins. Co., 794 S.W.2d 84, 89 (Tex. App.-San Antonio 1990), rev'd on other grounds, 825 S.W.2d 432 (Tex. 1991)). We have reviewed the additional and amended findings requested by Edward and find they were neither appropriate nor were they necessary to permit Edward to adequately prosecute his appeal.

Based upon the foregoing, we reject Edward's complaints with regard to legal and factual sufficiency as well as his complaint regarding the lack of specificity in the trial court's findings. Accordingly, we overrule issues one through four.


In the final decree, the trial court entered a permanent injunction prohibiting both Edward and Cynthia from placing a child in a closet or using excessive corporal punishment as methods of discipline. Edward complains in his fifth issue that the trial court granted this relief in violation of Rule 301 of the Texas Rules of Civil Procedure because there was no pleading to support it. See Tex. R. Civ. P. 301 (stating that judgment of court shall conform to pleadings, nature of case proved, any verdict, and be framed so as to give party all relief to which he is entitled).
A trial court may not grant relief in the absence of pleadings supporting such relief. Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex. App.-Austin 2000, no pet.); see Tex. R. Civ. P. 301.

hile a request for general relief cannot enlarge a pleading to include a different cause of action for which fair notice does not exist, Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979), relief consistent with a petitioner's theory as reflected in the petition may be granted under a general prayer for relief. Kissman v. Bendix Home Systems, Inc., 587 S.W.2d 675, 677 (Tex. 1979). We have reviewed the pleadings filed by both Edward and Cynthia and both requested general relief. Moreover, Cynthia specifically alleged Edward engaged in a pattern of physical abuse directed toward the children and asked within the petition that the court render an order "designed to protect the safety and well-being of the children." As shown in our discussion of issues one through four, there was sufficient evidence to support the finding of family violence and that Edward had placed the children in a closet and used corporal punishment. Thus, we conclude the prayer for general relief, the allegations and requests within the petition, and the evidence presented authorized the trial court to order the permanent injunction. The injunction was consistent with Cynthia's claims and the petition gave fair notice of the relief sought. We overrule issue five.

Constitutional Issues

In issue six, Edward raises what he deems "constitutional issues." He first contends "the state" has infringed upon his "fundamental liberty interest" with regard to his right to custody and care of his children without a compelling state interest. Edward appears to assume this case involves state action because it was presided over by a state district judge. There is no legal support for Edward's presumption and his argument is wholly without merit. There has been no "state action" in this case; rather, this was a private suit between two individuals concerning issues of divorce and child custody.

Edward next argues he received ineffective assistance of counsel from his "board certified and experienced family law attorney's [sic]." It is well established that the right to effective assistance of counsel does not extend to purely civil cases. See, e.g., Green v. Kaposta, 152 S.W.3d 839, 844 (Tex. App.-Dallas 2005, no pet.); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Therefore, Edward's complaint is without merit.

Lastly, Edward argues that in suits affecting the parent-child relationship the use of the preponderance of the evidence standard, rather than the clear and convincing standard, is a violation of his due process rights under the 14th Amendment of the United States Constitution. He contends that because he has a "fundamental liberty interest" in the care and custody of his children, the constitution mandates use of a higher standard of proof on issues of conservatorship and residency restrictions.

Section 105.005 of the Family Code states that unless otherwise provided, all court findings shall be based on a preponderance of the evidence. Tex. Fam. Code Ann. § 105.005(Vernon 2002). This standard of proof does not violate the 14th Amendment because decisions relating to issues of conservatorship, possession, and support are revocable and subject to relitigation. See Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d 559, 561 (Tex. App.-Dallas 1982, no writ). In other words, decrees involving issues under Chapter 153 and 154 of the Family Code "may be modified or changed from time to time, but the parent still retains some rights in and control over a child." (2) Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). Thus, there is not such a serious loss of rights so as to require a stricter burden of proof than that set forth in section 105.005. Choyce, 642 S.W.2d at 561.

Based on the foregoing, we find no constitutional error. Accordingly, we overrule Edward's sixth issue. Miscellaneous Issues

Within his seventh issue, Edward raises no less than eleven alleged errors-none of which are related. (3) As to issues "7B2," "7B3," "7B4," 7B5," "7C1," "7C3," and "7C4" Edward has not complied with the applicable briefing rules. (4) See Tex. R. App. P. 38.1. In each of these issues Edward has failed to provide citation to authority and has not included any argument. See Tex. R. App. P. 38.1(h) (stating that brief must contain clear and concise argument for contentions made with appropriate citations to authorities and the record). Rather, Edward has merely stated his complaint and referred this court to pleadings filed in the trial court, which he has attached as part of the appendix to his brief. This type of "briefing" (briefing by mere reference to trial court documents) is not recognized by the Texas Rules of Appellate Procedure and we decline to approve such a technique. (5) Accordingly, we hold Edward has waived these issues. See In re B.L., No. 04-05-00621-CV, 2006 WL 1895450, at *5 (Tex. App.-San Antonio Jul. 12, 2006, pet. denied (mem. op.) (citing Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (holding appellate court has discretion to deem points of error waived due to inadequate briefing)).

In issues "7A1" and "7A2," Edward complains about certain pretrial orders entered in this case and a failure to file findings of fact based on one of those orders. Obviously a final judgment has now been entered in this matter. Thus, any pretrial orders have expired or been subsumed within the final judgment. Thus, any complaint about such orders is moot. We overrule these issues.

Edward next complains he was denied his right to trial by jury. He argues that off-the-record negotiations took place regarding a jury trial and the trial court ultimately exerted improper influence to ensure a bench trial was held. At a hearing held prior to trial, Edward specifically waived his right to trial by jury:

THE COURT: . . . On the record, everybody's waiving their jury trial; is that correct?
MR. BRAZLE [counsel for Edward]: Mr. Sanchez?
(italics in original). Thus, Edward's contention is without merit and issue "7B1" is overruled.
The next complaint is that the trial court erred in denying his postjudgment motions to modify and motion for new trial. We have reviewed the motions and find no abuse of discretion by the trial court. In fact, the motions in essence challenge the trial court's findings on conservatorship and residency and we have already reviewed these contentions in this appeal and found them to be without merit. Accordingly, we overrule issue "7C2."

Fundamental Error

In his final issue, Edward appears to argue we should reverse this case because Cynthia's attorney acted unethically. In essence, this last issue is nothing more than a rant against opposing counsel, Cynthia, and the ultimate outcome. This presents nothing for our review and we overrule issue eight.

Reply Brief

In his reply brief, Edward attempts to raise an entirely new issue, issue nine. Rule 38.3 of the Texas Rules of Appellate Procedure permits an appellant to file a reply brief "addressing any matter in the appellee's brief." Tex. R. App. P. 38.3. By its terms, the rule does not permit an appellant to raise entirely new issues in a reply brief. Accordingly, we decline to review this additional issue.

Rule 45 Sanctions

Finally, Cynthia requests we award damages against Edward for pursuing a frivolous appeal. See Tex. R. App. P. 45. Rule 45 provides as follows:

If the court of appeals determines that an appeal is frivolous it may-on motion of any party or on its own initiative, after notice and a reasonable opportunity for response-award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the records, briefs, or other papers filed in the court of appeals. Id. It is within our discretion to grant or deny appellate sanctions. Tabrizi v. Das-Rez Corp., No. 04-05-00945-CV, 2007 WL 671323, at *4 (Tex. App.-San Antonio Mar. 7, 2007, no pet.) (mem. op.). Our discretion must be exercised "with prudence, caution, and after careful deliberation." Id. (quoting Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., Inc., 164 S.W.3d 438, 448 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). While we have determined that Edward's appellate complaints are without merit, we decline to impose sanctions. Thus, we deny Cynthia's request for appellate sanctions.


Based upon our analysis of the complaints raised by Edward, we find no error by the trial court. Accordingly, we overrule all of Edward's issues and affirm the trial court's judgment. Steven C. Hilbig, Justice

1. At the time of trial in September of 2005, the children were ages 13, 11, 9, and 7.

2. This is in contrast to parental termination cases, which do require proof by clear and convincing evidence. As recognized by the supreme court, parental termination cases involve decisions that are "complete, final, irrevocable." Wiley, 543 S.W.2d at 352. Such decisions divest a parent of all legal rights, duties, and powers with respect to the children. Id. This justifies a higher burden of proof. Id.

3. An issue or point of error addressing more than one specific ground of error is multifarious. Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.-San Antonio 1999, pet. denied), cert. denied, 531 U.S. 835 (2000). If an appellate court determines that an issue or point of error is multifarious, it may refuse to review it or it may consider the point of error if it can determine, with reasonable certainty, the error about which complaint is made. Id. In the interest of justice, we will address Edward's complaints-at least those that have been properly briefed. See id.

4. Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.-El Paso 2006, no pet.); Strange v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied), cert. denied, 543 U.S. 1076 (2005). A pro se litigant is required to properly present his case on appeal. Strange, 126 S.W.3d at 678. If this were not the rule, pro se litigants would be given an unfair advantage over parties represented by counsel. Greenstreet v. Heiskell, 940 S.W.2d 831, 835 (Tex. App.-Amarillo 1997, no writ). We cannot hold pro se litigants and those represented by counsel to difference standards. See Foster v. Williams, 74 S.W.3d 200, 202 (Tex. App.-Texarkana 2002, pet. denied).

5. In Truncellito v. Truncellito, the appellant presented no argument, authority, or standard of review in his fifth point of error. No. 01-99-00480-CV, 2000 WL 424431, at *1 (Tex. App.-Houston [1st Dist.] Apr. 20, 2000, pet. denied) (not designated for publication). Rather, just as Edward has done here, the appellant referred the appellate court to pages in the clerk's record. Id. The court of appeals held the point of error was waived for lack of briefing. Id.

Opinion by:
Steven C. Hilbig, Justice
Catherine Stone, Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 3, 2007
Full case style: Edward John Sanchez v. Cynthia Young Sanchez, No. 04-06-00469-CV
Appeal from 25th District Court of Guadalupe County (Honorable Linda Z. Jones, Judge Presiding)