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. (Tex.App.- San Antonio, Jul. 10, 2007)(Hilbig)(SAPCR)

OPINION BY JUSTICE STEVEN C. HILBIG

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.

FACTUAL AND PROCEDURAL BACKGROUND

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.

ISSUES ON APPEAL

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.

Injunction

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?
MR. SANCHEZ: Yes.
(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.

CONCLUSION

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
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 3, 2007
AFFIRMED
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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)