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Wednesday, October 31, 2007
Grandparent Custody Affirmed in Divorce Case
Fourteenth Court of Appeals affirms award of managing conservatorship to grandparents despite parental presumption; Houston family trial court heard evidence of domestic violence and pimping and found that legal presumption favoring parents as primary caregivers was rebutted.
Heiskell v. Kendrick, No. 14-06-00972-CV (Tex.App.- Houston [14th Dist.] Oct. 26, 2007)(Hedges)(domestic relations case law, divorce, SAPCR, grandparent intervention)
Disposition: Appointment of grandparents affirmed:
Opinion by Chief Justice Hedges
Full style: Brrian K. Heiskell v. Kennith and Sheri Kendrick
Appeal from 311th Family District Court of Harris County
M E M O R A N D U M O P I N I O N
Brian Heiskell appeals the custody award pursuant to a decree of divorce rendered in the matter of the marriage of Brian Heiskell and Misty Heiskell and in the interest of their minor children. The challenged order appoints the maternal grandparents joint managing conservators of the children. We affirm.
I. BACKGROUND
Brian Heiskell ("Father") and Misty Heiskell ("Mother") were married on March 14, 1998. Two children were born of this marriage on September 14, 1998 and June 18, 2001. The marriage was a turbulent one. Mother made several allegations against Father of verbal and physical abuse during the marriage. Father made similar allegations against Mother and claimed that Mother was promiscuous. Mother and Father separated in October 2003. Upon their separation, Mother and Father voluntarily left the two children in the care of the maternal grandparents, appellees, who reside in Sweetwater. Mother stayed in Houston while Father moved to Harlingen. Thereafter, the children returned to stay with Mother in Houston for approximately eight months. The children have been in the constant care of appellees since November 2004.
Mother filed for divorce in February 2005, requesting that she be appointed sole managing conservator of the children. Father filed his counter-petition two months later and also requested to be appointed sole managing conservator of the children. In December 2005, appellees filed an intervention alleging that appointment of Father and Mother as joint managing conservators would not be in the best interest of the children and requesting appointment as joint managing conservators of the children. Following a bench trial held on May 22, 2006, the district court appointed appellees joint managing conservators and Father and Mother possessory conservators with corresponding periods of possession.
Father presents two issues for review in this appeal. He argues that (1) appellees failed to prove that his appointment as managing conservator would significantly impair the children's physical health or emotional development and (2) appellees failed to satisfy the higher standard of proof required to rebut the parental presumption that appointment of Father as managing conservator is in the best interest of the children. We will address each issue in turn.
II. ANALYSIS
A. Standards of Review
When courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). Moreover, the trial judge has wide latitude in determining best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Indeed, we cannot interfere with the trial court's ultimate decision unless we conclude that it abused its discretion. In the Interest of Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ denied). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.
In a sufficiency review, appellate courts apply a hybrid analysis because sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.CAustin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed below. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Thus, we resolve the second question by determining whether the trial court's findings constitute an abuse of discretion. The mere fact that a trial judge may decide a matter within his discretion in a different manner than appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
B. Legal and Factual Sufficiency
In appellant's first issue, he argues that the evidence presented at trial is not legally or factually sufficient to support the trial court's decision to appoint appellees joint managing conservators based on its implied finding that Father's appointment would significantly impair the physical health or emotional development of the children. The evidence is legally insufficient only if (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider evidence and inferences favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In Re H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Next, in analyzing whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that appointing a biological parent is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2001). Consequently, this parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not adequate to offer evidence that a nonparent would be a better custodian of the child. Id. Still, this parental presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child=s physical health or emotional development negates the parental presumption, as does a finding of a history of family violence involving the parents of a child. See Tex. Fam. Code Ann. '' 153.131(a), 153.131(b),153.004(b) (Vernon 2001).
In the instant case, we must determine whether there was sufficient evidence to support the trial court's implied finding (1) that appointing Father as managing conservator would significantly impair the children's physical health or emotional development or (2) that there exists a history of family violence involving the parents of the children.[1] See id.
1. Impairment to Children's Physical Health or Emotional Development Under Section 153.131
For the court to award managing conservatorship to a nonparent under section 153.131, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. In essence, section 153.131 presumes that the best interests of a child is served when a biological parent is appointed managing conservator unless there is evidence that the biological parent has engaged in specific acts that would impair the child's physical health or emotional development.
Father alleges that there is insufficient evidence to support the implied finding that his appointment as managing conservator would impair the children=s physical health or emotional development. Specifically, he argues that the evidence presented at trial was insufficient to rebut the parental presumption under section 153.131. In support of his argument, Father cites excerpts from the testimony at the divorce proceeding to the effect that (1) he was never convicted of a crime involving family violence; (2) he removed himself from a volatile situation with Mother and began counseling to deal with his violent outbursts; (3) he has not been involved in any physical altercation since June 2004; (4) he has maintained health insurance on the children; (5) he has exercised possession and access to the children during the pendency of the divorce; and (6) he has made some child support payments to Mother and appellees. Relying on May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus Christi 1992, writ denied), Father contends that the material time concerning fitness for child custody is the present, not the past; the fact that the parent would not have been a proper custodian sometime in the past is not controlling.
Though highly disputed by Father, there is evidence that awarding Father managing conservatorship would significantly impair the children=s physical health or emotional development. Specifically, there is evidence that Father physically attacked Mother on a number of occasions, one of which transpired while the daughter was in harm=s way. Father made only sporadic visits to the children following the separation (ten visits over two years and seven months) and has failed to provide adequate financial support for the children.
Additionally, Mother and appellees testified that the son has exhibited violent behavior towards his sister, Mother, and appellees, indicating that such violence was acceptable because ADaddy did it.@ The violent behavior diminished after the child was placed in the care of appellees. There is evidence that Father accepted money from a man in consideration for his wife=s Acompanionship.@[2] See Whitworth, 222 S.W.3d at 623 (stating that an adult=s future conduct may be somewhat determined by recent past conduct.).
An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. We find that there is sufficient evidence to support the trial court=s implied finding that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development.
2. Finding of a History of Family Violence Under Sections 153.131(b) and 153.004(b)
A finding of a history of family violence also rebuts the section 153.131 parental presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(b). The presumption is rebutted if sufficient evidence is presented showing a history or pattern of past or present child neglect, or physical abuse by that parent directed against the other parent, a spouse or a child. Tex. Fam. Code Ann. ' 153.004(b).
In the instant case, there is sufficient evidence to support a finding of a history of family violence. See Tex. Fam. Code Ann. ' 71.004 (Vernon 2002) (family violence is an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury or assault). There was testimony that Father physically attacked Mother on a number of occasions during the marriage. One such attack led to a thirty-day deferred adjudication of guilt and a magistrate order for emergency protection against Father. At least one of the physical altercations occurred while the daughter was endangered. It is undisputed by Father that he made an oral threat to beat his wife to death. All of these incidents occurred within two years of the divorce action. See Tex. Fam. Code Ann. ' 153.004 (in determining whether to appoint a party a managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party=s spouse committed within a two-year period preceding the filing of the suit). There is sufficient evidence to support the trial court=s implied finding of a history of family violence to rebut the parental presumption.
Considering the evidence and inferences in favor of the finding, we find the evidence to be legally sufficient to support the trial court=s decision. Additionally, we find that the evidence is not so against the great weight and preponderance of the evidence to be manifestly unjust. We find that (1) there is sufficient evidence that Father=s appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) there is sufficient evidence to support the court=s implied finding of a history of family violence involving the parents and the children. This evidence negates the parental presumption. Under the applicable standard of review, we find the evidence is legally and factually sufficient to support the trial court=s decision. We overrule Father=s first issue.
C. Best Interest Test
In Father=s second issue, he contends that the trial court abused its discretion in finding that appellees successfully rebutted the presumption that his appointment as managing conservator was in the best interests of the children. Specifically, he argues that appellees failed to meet the Ahigher standard@ of proof required to rebut the parental presumption.
In 1995, the Texas Legislature substantially revised to the Texas Family Code regarding the parental presumption and family violence in custody cases. Father argues that when a non-parent is appointed managing conservator, the court must apply a higher standard to determine the best interests of the child. He attempts to support his contention that the standard "best interests" test is inappropriate in this case based on Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He argues that Brooks imposes a higher level of analysis under section 14.07 in cases awarding custody to a nonparent. We note that section 14.07 was repealed in 1995. Act of May 10, 1991, 72nd Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. Laws 771, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S., ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the higher standard outlined in Brooks is essentially the current parental presumption under the new section 153.131(a). See Brooks, 881 S.W.2d at 298 (holding that before appointing a non-parent sole conservatorship, there must be proof that "appointment of the parent would significantly impair the child's health or emotional development"). It is undisputed that statute requires primary consideration of the best interest of the child in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code Ann. ' 153.002. There is no authority imposing a different test or higher standard to be applied to a custody case awarding non-parents sole managing conservatorship and biological parents possessory conservatorship. We hold that the trial court did not abuse its discretion in finding that appointment of appellees as managing conservators is in the best interest of the children. We overrule Father's final issue.
We affirm the judgment of the trial court.
/s/ Adele Hedges, Chief Justice
Judgment rendered and Memorandum Opinion filed October 23, 2007.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record does not contain an explicit affirmative finding by the trial court that (1) appointment of Father as managing conservator would significantly impair the children's physical health or emotional development or (2) there exists a history of family violence. We do note, however, that the trial court made an oral finding during the divorce trial that Aall Family Code requirements for the Court to make t[he conservatorship] appointments have been satisfied by the evidence presented in the course of this trial." The final decree of divorce also states "The Court finds that all requirements of the Family Code, necessary to award custody of the children to Intervenors, have been met."
[2] Mother testified at trial that Father "pimped" her out to a Mr. Ward. Mother indicated that Mr. Ward and Father met in person and made an agreement wherein for Mr. Ward's payment of $15,000, Father would allow Mr. Ward to spend time with Mother while Mr. Ward's wife was out of town. Father testified that he took the money from Mr. Ward because it was "easy money," but denied that he entered into such an agreement to prostitute his wife.
Heiskell v. Kendrick, No. 14-06-00972-CV (Tex.App.- Houston [14th Dist.] Oct. 26, 2007)(Hedges)(domestic relations case law, divorce, SAPCR, grandparent intervention)
Disposition: Appointment of grandparents affirmed:
Opinion by Chief Justice Hedges
Full style: Brrian K. Heiskell v. Kennith and Sheri Kendrick
Appeal from 311th Family District Court of Harris County
M E M O R A N D U M O P I N I O N
Brian Heiskell appeals the custody award pursuant to a decree of divorce rendered in the matter of the marriage of Brian Heiskell and Misty Heiskell and in the interest of their minor children. The challenged order appoints the maternal grandparents joint managing conservators of the children. We affirm.
I. BACKGROUND
Brian Heiskell ("Father") and Misty Heiskell ("Mother") were married on March 14, 1998. Two children were born of this marriage on September 14, 1998 and June 18, 2001. The marriage was a turbulent one. Mother made several allegations against Father of verbal and physical abuse during the marriage. Father made similar allegations against Mother and claimed that Mother was promiscuous. Mother and Father separated in October 2003. Upon their separation, Mother and Father voluntarily left the two children in the care of the maternal grandparents, appellees, who reside in Sweetwater. Mother stayed in Houston while Father moved to Harlingen. Thereafter, the children returned to stay with Mother in Houston for approximately eight months. The children have been in the constant care of appellees since November 2004.
Mother filed for divorce in February 2005, requesting that she be appointed sole managing conservator of the children. Father filed his counter-petition two months later and also requested to be appointed sole managing conservator of the children. In December 2005, appellees filed an intervention alleging that appointment of Father and Mother as joint managing conservators would not be in the best interest of the children and requesting appointment as joint managing conservators of the children. Following a bench trial held on May 22, 2006, the district court appointed appellees joint managing conservators and Father and Mother possessory conservators with corresponding periods of possession.
Father presents two issues for review in this appeal. He argues that (1) appellees failed to prove that his appointment as managing conservator would significantly impair the children's physical health or emotional development and (2) appellees failed to satisfy the higher standard of proof required to rebut the parental presumption that appointment of Father as managing conservator is in the best interest of the children. We will address each issue in turn.
II. ANALYSIS
A. Standards of Review
When courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). Moreover, the trial judge has wide latitude in determining best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Indeed, we cannot interfere with the trial court's ultimate decision unless we conclude that it abused its discretion. In the Interest of Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ denied). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.
In a sufficiency review, appellate courts apply a hybrid analysis because sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.CAustin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed below. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Thus, we resolve the second question by determining whether the trial court's findings constitute an abuse of discretion. The mere fact that a trial judge may decide a matter within his discretion in a different manner than appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
B. Legal and Factual Sufficiency
In appellant's first issue, he argues that the evidence presented at trial is not legally or factually sufficient to support the trial court's decision to appoint appellees joint managing conservators based on its implied finding that Father's appointment would significantly impair the physical health or emotional development of the children. The evidence is legally insufficient only if (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider evidence and inferences favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In Re H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Next, in analyzing whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that appointing a biological parent is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2001). Consequently, this parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not adequate to offer evidence that a nonparent would be a better custodian of the child. Id. Still, this parental presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child=s physical health or emotional development negates the parental presumption, as does a finding of a history of family violence involving the parents of a child. See Tex. Fam. Code Ann. '' 153.131(a), 153.131(b),153.004(b) (Vernon 2001).
In the instant case, we must determine whether there was sufficient evidence to support the trial court's implied finding (1) that appointing Father as managing conservator would significantly impair the children's physical health or emotional development or (2) that there exists a history of family violence involving the parents of the children.[1] See id.
1. Impairment to Children's Physical Health or Emotional Development Under Section 153.131
For the court to award managing conservatorship to a nonparent under section 153.131, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. In essence, section 153.131 presumes that the best interests of a child is served when a biological parent is appointed managing conservator unless there is evidence that the biological parent has engaged in specific acts that would impair the child's physical health or emotional development.
Father alleges that there is insufficient evidence to support the implied finding that his appointment as managing conservator would impair the children=s physical health or emotional development. Specifically, he argues that the evidence presented at trial was insufficient to rebut the parental presumption under section 153.131. In support of his argument, Father cites excerpts from the testimony at the divorce proceeding to the effect that (1) he was never convicted of a crime involving family violence; (2) he removed himself from a volatile situation with Mother and began counseling to deal with his violent outbursts; (3) he has not been involved in any physical altercation since June 2004; (4) he has maintained health insurance on the children; (5) he has exercised possession and access to the children during the pendency of the divorce; and (6) he has made some child support payments to Mother and appellees. Relying on May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus Christi 1992, writ denied), Father contends that the material time concerning fitness for child custody is the present, not the past; the fact that the parent would not have been a proper custodian sometime in the past is not controlling.
Though highly disputed by Father, there is evidence that awarding Father managing conservatorship would significantly impair the children=s physical health or emotional development. Specifically, there is evidence that Father physically attacked Mother on a number of occasions, one of which transpired while the daughter was in harm=s way. Father made only sporadic visits to the children following the separation (ten visits over two years and seven months) and has failed to provide adequate financial support for the children.
Additionally, Mother and appellees testified that the son has exhibited violent behavior towards his sister, Mother, and appellees, indicating that such violence was acceptable because ADaddy did it.@ The violent behavior diminished after the child was placed in the care of appellees. There is evidence that Father accepted money from a man in consideration for his wife=s Acompanionship.@[2] See Whitworth, 222 S.W.3d at 623 (stating that an adult=s future conduct may be somewhat determined by recent past conduct.).
An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. We find that there is sufficient evidence to support the trial court=s implied finding that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development.
2. Finding of a History of Family Violence Under Sections 153.131(b) and 153.004(b)
A finding of a history of family violence also rebuts the section 153.131 parental presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(b). The presumption is rebutted if sufficient evidence is presented showing a history or pattern of past or present child neglect, or physical abuse by that parent directed against the other parent, a spouse or a child. Tex. Fam. Code Ann. ' 153.004(b).
In the instant case, there is sufficient evidence to support a finding of a history of family violence. See Tex. Fam. Code Ann. ' 71.004 (Vernon 2002) (family violence is an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury or assault). There was testimony that Father physically attacked Mother on a number of occasions during the marriage. One such attack led to a thirty-day deferred adjudication of guilt and a magistrate order for emergency protection against Father. At least one of the physical altercations occurred while the daughter was endangered. It is undisputed by Father that he made an oral threat to beat his wife to death. All of these incidents occurred within two years of the divorce action. See Tex. Fam. Code Ann. ' 153.004 (in determining whether to appoint a party a managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party=s spouse committed within a two-year period preceding the filing of the suit). There is sufficient evidence to support the trial court=s implied finding of a history of family violence to rebut the parental presumption.
Considering the evidence and inferences in favor of the finding, we find the evidence to be legally sufficient to support the trial court=s decision. Additionally, we find that the evidence is not so against the great weight and preponderance of the evidence to be manifestly unjust. We find that (1) there is sufficient evidence that Father=s appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) there is sufficient evidence to support the court=s implied finding of a history of family violence involving the parents and the children. This evidence negates the parental presumption. Under the applicable standard of review, we find the evidence is legally and factually sufficient to support the trial court=s decision. We overrule Father=s first issue.
C. Best Interest Test
In Father=s second issue, he contends that the trial court abused its discretion in finding that appellees successfully rebutted the presumption that his appointment as managing conservator was in the best interests of the children. Specifically, he argues that appellees failed to meet the Ahigher standard@ of proof required to rebut the parental presumption.
In 1995, the Texas Legislature substantially revised to the Texas Family Code regarding the parental presumption and family violence in custody cases. Father argues that when a non-parent is appointed managing conservator, the court must apply a higher standard to determine the best interests of the child. He attempts to support his contention that the standard "best interests" test is inappropriate in this case based on Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He argues that Brooks imposes a higher level of analysis under section 14.07 in cases awarding custody to a nonparent. We note that section 14.07 was repealed in 1995. Act of May 10, 1991, 72nd Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. Laws 771, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S., ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the higher standard outlined in Brooks is essentially the current parental presumption under the new section 153.131(a). See Brooks, 881 S.W.2d at 298 (holding that before appointing a non-parent sole conservatorship, there must be proof that "appointment of the parent would significantly impair the child's health or emotional development"). It is undisputed that statute requires primary consideration of the best interest of the child in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code Ann. ' 153.002. There is no authority imposing a different test or higher standard to be applied to a custody case awarding non-parents sole managing conservatorship and biological parents possessory conservatorship. We hold that the trial court did not abuse its discretion in finding that appointment of appellees as managing conservators is in the best interest of the children. We overrule Father's final issue.
We affirm the judgment of the trial court.
/s/ Adele Hedges, Chief Justice
Judgment rendered and Memorandum Opinion filed October 23, 2007.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record does not contain an explicit affirmative finding by the trial court that (1) appointment of Father as managing conservator would significantly impair the children's physical health or emotional development or (2) there exists a history of family violence. We do note, however, that the trial court made an oral finding during the divorce trial that Aall Family Code requirements for the Court to make t[he conservatorship] appointments have been satisfied by the evidence presented in the course of this trial." The final decree of divorce also states "The Court finds that all requirements of the Family Code, necessary to award custody of the children to Intervenors, have been met."
[2] Mother testified at trial that Father "pimped" her out to a Mr. Ward. Mother indicated that Mr. Ward and Father met in person and made an agreement wherein for Mr. Ward's payment of $15,000, Father would allow Mr. Ward to spend time with Mother while Mr. Ward's wife was out of town. Father testified that he took the money from Mr. Ward because it was "easy money," but denied that he entered into such an agreement to prostitute his wife.
Substitution of Counsel: The Client is King
Houston Court of Appeals rules that attorney who did not want to withdraw from divorce case had no standing to challenge the authority of his replacement to proceed with post-judgment motions on behalf of the client; voids trial court's ruling on Rule 12 motion, holding that the motion was not brought by or on behalf of any party, as required by the rule.
Philips v. Philips, No. 01-06-00526-CV (Tex.App.- Houston [1st. Dist.] Oct. 18, 2007)(Hanks)(Rule 12 motion, motion for new trial)
Disposition: REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
Full style: Patricia Phillips v. Charles T. Phillip
OPINION BY JUSTICE GEORGE C. HANKS, JR.
After Patricia and Charles T. Phillips's divorce decree was signed, Patricia retained a new attorney to file a motion for new trial. The trial court struck the motion for new trial after hearing Patricia's trial attorney's Rule 12 motion to show authority, challenging the new attorney's authority to represent Patricia. In one point of error, Patricia argues that the trial court erred in striking her motion for new trial. We agree, reverse the trial court's grant of the Rule 12 motion, and remand for a hearing on the motion for new trial.
Background
On December 13, 2005, Patricia and Charles's uncontested divorce was granted, and their property division was approved, judgment to be entered on January 9, 2006. However, several changes were made to the decree, which was not signed until February 16, 2006. Patricia twice told her trial counsel, Bruce Mauzy, to file a motion for new trial or notice of appeal. He refused and told her that she would have to hire another attorney to file her requests and have the new attorney send him a motion to substitute counsel. Patricia retained Charles A. Hood, who timely filed her motion for new trial and set it for hearing on April 12, 2006. Mauzy was served with a subpoena duces tecum the day before the hearing requesting that he turnover Patricia's file.
On the day of hearing on Patricia's motion for new trial, Mauzy filed a motion to show authority under Texas Rule of Civil Procedure 12 and a motion to quash the subpoena duces tecum. In the Rule 12 motion, Mauzy argued that Hood lacked authority to file the motion for new trial because Mauzy was still Patricia's attorney when the motion for new trial was filed, and Hood was thus interfering with their attorney/client relationship. The trial court found that Hood lacked authority and struck Patricia's motion for new trial. Hood responded the same day with a motion to substitute counsel and an amended motion for new trial, neither of which was ruled on by the trial court. He also later filed a motion to reconsider, which the trial court denied after a hearing. Patricia now appeals. Summary of Argument
In her sole issue, Patricia argues that the trial court erred in striking her motion for new trial. She asserts that, because Mauzy no longer represented her at the time Hood filed the motion for new trial, the motion should have been heard, not stricken. In support, Patricia contends that: (1) because only a party may challenge an attorney's authority through a Rule 12 motion, Mauzy lacked standing to challenge Hood's authority; (2) it was error for the trial court to hear Mauzy's motion to show authority on the same day it was filed; (3) a client can discharge her attorney and hire new counsel at anytime, for any reason, and, once discharged, the former attorney must withdraw; (4) a motion to substitute counsel was unnecessary; and (5) she was harmed by being denied the counsel of her choice.
Standard of Review
We review a trial court's striking of a motion for new trial for an abuse of discretion. See Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 908 (Tex. App.--Dallas 2003, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 226 (Tex. App.--Houston [1st Dist.] 2007, no pet.). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.
Standing
Patricia argues that, because Rule 12 states that "[a] party in a suit or proceeding" may bring a motion to show authority, Mauzy, a non-party, lacked standing to bring such a motion. Tex. R. Civ. P. 12. Because standing is a component of subject-matter jurisdiction, we review a trial court's determination of standing de novo. Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). An order is void, among other things, if the trial court lacks subject-matter jurisdiction to render it. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
We are also called upon to interpret the meaning of "party" in Rule 12. "[R]ule interpretation is 'a pure question of law over which the judge has no discretion.'" Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (quoting Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997)). Thus, we also review rule interpretation de novo. BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). When a rule of procedure is clear, unambiguous, and specific, we construe its language according to its literal meaning. Bradt, 14 S.W.3d at 762.
Rule 12 has long been the exclusive method for questioning the authority of an attorney to bring a suit. Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964). At its roots, Rule 12 (originally Article 320 of the Texas Revised Civil Statutes) was created to protect defendants by giving them a means for determining whether a plaintiff had authorized an attorney to act. Id. Until 1981, a Rule 12 motion was limited to a defendant challenging a plaintiff's attorney's authority to prosecute a suit; afterward, Rule 12 was changed to also allow a plaintiff to challenge another party's attorney's authority. See Gulf Reg'l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 810 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
In the present case, Mauzy, Patricia's original trial counsel, filed a Rule 12 motion contesting Hood's authority to represent Patricia in a motion for new trial. Rule 12 does not address whether a motion can be filed by a non-party attorney. Therefore, we must strictly adhere to the Rule's language, which plainly grants a party standing to challenge an attorney's authority. See Bradt, 14 S.W.3d at 762.
Charles claims that, because he "urged the trial court to grant" Mauzy's Rule 12 motion during the hearings on the Rule 12 motion and the motion to reconsider, the "party" requirement of Rule 12 was met. Regardless, Mauzy filed the Rule 12 motion on his own accord--Charles was not represented by Mauzy, and he did not prompt Mauzy to bring this motion. The motion challenging Hood's authority was not brought by or on behalf of any party.
Thus, because Mauzy lacked standing to file the Rule 12 motion, the trial court's order ruling on the merits and finding that Hood lacked authority is void. See Hong Kong Dev., 229 S.W.3d at 439. The trial court struck Patricia's motion for new trial after erroneously hearing the Rule 12 motion and determining that Hood lacked authority to represent Patricia. As a result, the trial court abused its discretion in striking the motion for new trial. Because this holding is dispositive of Patricia's appeal, we need not address the merits of her other arguments.
Conclusion
We reverse the trial court's striking of the motion for new trial and remand to the trial court for a hearing on the motion for new trial.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Philips v. Philips, No. 01-06-00526-CV (Tex.App.- Houston [1st. Dist.] Oct. 18, 2007)(Hanks)(Rule 12 motion, motion for new trial)
Disposition: REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
Full style: Patricia Phillips v. Charles T. Phillip
OPINION BY JUSTICE GEORGE C. HANKS, JR.
After Patricia and Charles T. Phillips's divorce decree was signed, Patricia retained a new attorney to file a motion for new trial. The trial court struck the motion for new trial after hearing Patricia's trial attorney's Rule 12 motion to show authority, challenging the new attorney's authority to represent Patricia. In one point of error, Patricia argues that the trial court erred in striking her motion for new trial. We agree, reverse the trial court's grant of the Rule 12 motion, and remand for a hearing on the motion for new trial.
Background
On December 13, 2005, Patricia and Charles's uncontested divorce was granted, and their property division was approved, judgment to be entered on January 9, 2006. However, several changes were made to the decree, which was not signed until February 16, 2006. Patricia twice told her trial counsel, Bruce Mauzy, to file a motion for new trial or notice of appeal. He refused and told her that she would have to hire another attorney to file her requests and have the new attorney send him a motion to substitute counsel. Patricia retained Charles A. Hood, who timely filed her motion for new trial and set it for hearing on April 12, 2006. Mauzy was served with a subpoena duces tecum the day before the hearing requesting that he turnover Patricia's file.
On the day of hearing on Patricia's motion for new trial, Mauzy filed a motion to show authority under Texas Rule of Civil Procedure 12 and a motion to quash the subpoena duces tecum. In the Rule 12 motion, Mauzy argued that Hood lacked authority to file the motion for new trial because Mauzy was still Patricia's attorney when the motion for new trial was filed, and Hood was thus interfering with their attorney/client relationship. The trial court found that Hood lacked authority and struck Patricia's motion for new trial. Hood responded the same day with a motion to substitute counsel and an amended motion for new trial, neither of which was ruled on by the trial court. He also later filed a motion to reconsider, which the trial court denied after a hearing. Patricia now appeals. Summary of Argument
In her sole issue, Patricia argues that the trial court erred in striking her motion for new trial. She asserts that, because Mauzy no longer represented her at the time Hood filed the motion for new trial, the motion should have been heard, not stricken. In support, Patricia contends that: (1) because only a party may challenge an attorney's authority through a Rule 12 motion, Mauzy lacked standing to challenge Hood's authority; (2) it was error for the trial court to hear Mauzy's motion to show authority on the same day it was filed; (3) a client can discharge her attorney and hire new counsel at anytime, for any reason, and, once discharged, the former attorney must withdraw; (4) a motion to substitute counsel was unnecessary; and (5) she was harmed by being denied the counsel of her choice.
Standard of Review
We review a trial court's striking of a motion for new trial for an abuse of discretion. See Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 908 (Tex. App.--Dallas 2003, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 226 (Tex. App.--Houston [1st Dist.] 2007, no pet.). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Id.
Standing
Patricia argues that, because Rule 12 states that "[a] party in a suit or proceeding" may bring a motion to show authority, Mauzy, a non-party, lacked standing to bring such a motion. Tex. R. Civ. P. 12. Because standing is a component of subject-matter jurisdiction, we review a trial court's determination of standing de novo. Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). An order is void, among other things, if the trial court lacks subject-matter jurisdiction to render it. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 439 (Tex. App.--Houston [1st Dist.] 2007, no pet.).
We are also called upon to interpret the meaning of "party" in Rule 12. "[R]ule interpretation is 'a pure question of law over which the judge has no discretion.'" Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (quoting Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997)). Thus, we also review rule interpretation de novo. BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). When a rule of procedure is clear, unambiguous, and specific, we construe its language according to its literal meaning. Bradt, 14 S.W.3d at 762.
Rule 12 has long been the exclusive method for questioning the authority of an attorney to bring a suit. Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex. 1964). At its roots, Rule 12 (originally Article 320 of the Texas Revised Civil Statutes) was created to protect defendants by giving them a means for determining whether a plaintiff had authorized an attorney to act. Id. Until 1981, a Rule 12 motion was limited to a defendant challenging a plaintiff's attorney's authority to prosecute a suit; afterward, Rule 12 was changed to also allow a plaintiff to challenge another party's attorney's authority. See Gulf Reg'l Educ. Television Affiliates v. Univ. of Houston, 746 S.W.2d 803, 810 (Tex. App.--Houston [14th Dist.] 1988, writ denied).
In the present case, Mauzy, Patricia's original trial counsel, filed a Rule 12 motion contesting Hood's authority to represent Patricia in a motion for new trial. Rule 12 does not address whether a motion can be filed by a non-party attorney. Therefore, we must strictly adhere to the Rule's language, which plainly grants a party standing to challenge an attorney's authority. See Bradt, 14 S.W.3d at 762.
Charles claims that, because he "urged the trial court to grant" Mauzy's Rule 12 motion during the hearings on the Rule 12 motion and the motion to reconsider, the "party" requirement of Rule 12 was met. Regardless, Mauzy filed the Rule 12 motion on his own accord--Charles was not represented by Mauzy, and he did not prompt Mauzy to bring this motion. The motion challenging Hood's authority was not brought by or on behalf of any party.
Thus, because Mauzy lacked standing to file the Rule 12 motion, the trial court's order ruling on the merits and finding that Hood lacked authority is void. See Hong Kong Dev., 229 S.W.3d at 439. The trial court struck Patricia's motion for new trial after erroneously hearing the Rule 12 motion and determining that Hood lacked authority to represent Patricia. As a result, the trial court abused its discretion in striking the motion for new trial. Because this holding is dispositive of Patricia's appeal, we need not address the merits of her other arguments.
Conclusion
We reverse the trial court's striking of the motion for new trial and remand to the trial court for a hearing on the motion for new trial.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Friday, October 12, 2007
Houston Court of Appeals throws out trial court's sanctions for filing of lis pendens in the course of a divorce suit
Mary Ann Parker v. Sheryl King Walton, No. 14-06-00095-CV (Tex.App.- Houston [14th Dist.] Aug. 28, 2007)(Opinion by Justice Brock Yates)(divorce property and lis pendens, sanctions reversed)(Before Justices Brock Yates, Edelman and Seymore)
Appeal from County Court No. 3 of Galveston County
Disposition: REVERSED AND RENDERED:
O P I N I O N
In five issues, appellant Mary Ann Parker challenges the trial court’s order imposing sanctions against her for recording a lis pendens on property awarded to appellee Sheryl King Walton in a divorce proceeding. We reverse the trial court’s sanctions order and render judgment that Walton take nothing.
I. Factual and Procedural Background
On July 1, 2003, Walton filed for divorce from her husband, Ronnie Joe Walton ("Ronnie Joe"). Ronnie Joe’s mother, Mary Ann Parker, was subsequently joined in the divorce proceeding to litigate claims by Walton regarding two properties at issue in the divorce, including property in Walton’s name located at 84 Harbor Lane in Kemah, Texas.[1] Parker counter-claimed based upon her alleged ownership interest in the Harbor Lane property and attempted to impose a constructive trust. During the course of the litigation, Walton sought to refinance the mortgage on the Harbor Lane property to obtain a lower interest rate. Walton sought authorization from the trial court to refinance the property, and, at a hearing on July 27, 2005, the court orally granted her such authorization. The following week, on August 3, Parker’s attorneys recorded a lis pendens on the Harbor Lane property, which Walton claims precluded her from refinancing. At the ensuing divorce trial on December 6-9, the trial court awarded Walton the Harbor Lane property as her separate property. The court did not submit Parker’s constructive trust claim to the jury.
Thereafter, on December 15, Walton filed a motion for sanctions against Parker, Parker’s attorneys, Ronnie Joe, and Ronnie Joe’s attorneys under Texas Rule of Civil Procedure 13, generally alleging that they filed groundless claims in bad faith and/or to harass her.[2] On December 19, Parker responded, contending that Walton failed to meet her burden to show Parker’s claims were groundless or brought in bad faith or for the purpose of harassment and complaining that the motion was too vague to provide proper notice. At the hearing on December 21, Walton, through her testimony and her attorney’s arguments, principally alleged that Parker recorded the lis pendens to prevent her from refinancing the property and to undermine the court’s order authorizing refinancing. Walton testified that her inability to refinance and obtain a lower interest rate caused her to incur significant costs in additional interest and other charges. Parker’s attorney, Toni Sharretts, responded that, although she was aware Walton might attempt to refinance the property, she recorded the lis pendens only to protect her client’s interests and not to prevent Walton from refinancing. She explained that she was unaware of the hearing or the court’s order when she recorded the lis pendens, as she never received a copy of the motion or other notice, and thus she could not have recorded the lis pendens to undermine the court’s order. According to Sharretts, she first learned of the court’s order when Walton’s attorney contacted her demanding a release of the lis pendens.
Incredulous that the hearing took place or that the court gave such an order, Sharretts requested a copy of documentation reflecting the court’s order, which Walton failed to provide. Walton’s attorney, on the other hand, informed the trial court he properly served all parties in the case with the motion and noted that Ronnie Joe appeared at the motion hearing to contest the refinancing. Walton’s attorney maintained, and Sharretts admitted, that he told her the lis pendens precluded refinancing when he requested that she release it, but she still refused. Although our record does not contain any written documentation of the court’s order, the trial judge stated that he "remember[ed] the motion" and "recall[ed] permitting [Walton] to refinance."
At the close of the hearing, the trial court stated, "All right. I’m going to grant your motion, and I’m going to award the sanctions at . . . $3,500 in the attorney’s fees, and I’m going to award 6,750 in the difference in the interest rates . . . ." After the court’s pronouncement, Walton’s attorney stated that he would prepare a "separate order on that and submit it to opposing counsel."[3] The docket sheet entry from the day of the hearing accordingly reads, "Mot for sanctions granted per order to be filed by Petitioner on or before 1/6/06." However, Walton’s attorney did not file, and the court did not sign and enter, a written judgment signifying the sanctions order on or before January 6, 2006. According to Walton, this was an "inadvertent mistake," and, on June 22, 2006, Walton’s attorney filed a motion to enter judgment nunc pro tunc on the sanctions order. Parker opposed the motion, arguing that a judgment nunc pro tunc operates only to correct a clerical error in a written judgment, and, because no written order existed, a judgment nunc pro tunc was improper. The trial court granted Walton’s motion and entered the judgment nunc pro tunc on the sanctions order on July 13, 2006, awarding sanctions against "Mary Ann Parker" for "sanctionable conduct."[4]
Parker now appeals, claiming the trial court abused its discretion in imposing sanctions against her for recording the lis pendens against the Harbor Lane property.
II. Standard of Review
We review the trial court’s imposition of Rule 13 sanctions for an abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. To determine if the sanctions were appropriate or just, the appellate court must ensure there is a direct nexus between the improper conduct and the sanction imposed. Id.
III. Analysis
We first address the second sub-point under Parker’s fifth issue, in which she contends that Walton failed to overcome the presumption that Parker recorded the lis pendens on the Harbor Lane property in good faith to put third parties on notice of the pending litigation concerning the property. Walton counters that the trial court sanctioned Parker not only for recording a lis pendens but also for filing the groundless constructive trust claim against the property "which Walton characterizes as her "homestead" that formed the basis of the lis pendens. Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and brought to harass. See Tex. R. Civ. P. 13; City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex. App.-Houston [14th Dist.] 1995, no writ). When determining whether Rule 13 sanctions are proper, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. See State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d 654, 670 (Tex. App.-Houston [14th Dist.] 2005, pet. granted); Neely v. Comm’n for Lawyer Discipline, 976 S.W.2d 824, 828 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Rule 13 requires sanctions based on the acts or omissions of the represented party or counsel and not merely on the legal merit of the pleading. See PR Invs., 180 S.W.3d at 670; Neely, 976 S.W.2d at 828. The trial court must provide notice and hold an evidentiary hearing "to make the necessary factual determinations about the motives and credibility of the person signing the groundless petition." Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.-Houston [14th Dist.] 1997, no writ). "Groundless" means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Tex. R. Civ. P. 13. Bad faith is not simply bad judgment or negligence; rather, it is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. See PR Invs., 180 S.W.3d at 670. Improper motive is an essential element of bad faith. Elkins v. Stotts Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). Harassment means that the pleading was intended to annoy, alarm, and abuse another person. See PR Invs., 180 S.W.3d at 670. Courts must presume that papers are filed in good faith, and the party moving for sanctions bears the burden of overcoming this presumption. Id.
Walton maintains that Parker’s constructive trust claim was groundless and brought in bad faith and to harass because the trial court refused submission of this claim to the jury at trial, which signaled that the court found no evidence to support it. She further asserts that Parker recorded the lis pendens in bad faith and to harass because she did so only a few days after the court authorized refinancing of the property over Ronnie Joe’s objection, and the lis pendens effectively prevented her from refinancing. Walton notes that, on the day of the sanctions hearing, the trial court "had the entire record of the case before [it]," which shows that both the constructive trust claim and lis pendens were "clearly malicious." Walton adds that Parker’s failure to request findings of fact and conclusions of law constitutes an additional basis for affirming the court’s sanctions order.
We agree with Parker that Walton failed to overcome the presumption that Parker filed her constructive trust claim regarding the Harbor Lane property "and, by extension, the lis pendens"in good faith.[5] At the sanctions hearing, Walton focused exclusively on Parker’s recording of the lis pendens and failed to adduce any evidence showing Parker’s claim, on which the lis pendens was based, was groundless and brought in bad faith or to harass. As to groundlessness, the only statement from the hearing that we construe as relevant to this issue is Walton’s attorney’s statement to the trial court, "It’s difficult for me to understand why they took an interest in [the Harbor Lane property because it] is owned by my clients." The record is otherwise devoid of evidence showing that Parker’s underlying claim lacked a basis in law or fact and was not warranted by a good faith argument for the extension, modification, or reversal of existing law. The record does not contain the pleadings filed in the divorce proceeding or a transcript of the trial record. Further, although the final divorce decree indicates the Harbor Lane property was in Walton’s name and that the constructive trust claim was not in fact submitted to the jury, the decree does not specify that Parker’s claim was groundless. Nor did the court or the parties so specify during the charge conference[6] or in the judgment nunc pro tunc imposing the sanctions, which does not set forth with particularity the acts or omissions on which the sanctions are based.[7] Moreover, we reject Walton’s summary conclusion that
Parker’s claim was groundless simply because the trial court refused to submit it to the jury. Walton does not cite, and we do not find, any authority holding that the court’s refusal to submit a claim to the jury in itself establishes that the claim was groundless. See generally GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (noting that Rule 13 does not permit sanctions for every pleading or motion requesting relief that is denied).
Similarly, Walton failed to adduce any evidence at the hearing indicating Parker filed the constructive trust claim in bad faith or to harass. The testimony at the hearing focused largely on Parker’s attorneys’ purpose for recording the lis pendens and whether they had notice of the trial court’s order authorizing financing. Such evidence does not adequately explain the facts and circumstances existing at the time Parker filed the constructive trust or the motives, intent, and credibility of Parker or her attorneys in so filing. See Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.-Fort Worth 1995, no writ) (noting that without hearing evidence on circumstances surrounding filing of pleading signer’s credibility and motives, trial court has no evidence to determine that pleading was filed in bad faith or to harass). Again, Walton simply points to the timing of the lis pendens as directly subsequent to the trial court’s order authorizing refinancing and the court’s refusal to submit the constructive trust claim to the jury as conclusive evidence that Parker filed the claim in bad faith and to harass. Therefore, even absent findings of fact and conclusions of law, we conclude Walton failed to overcome the presumption that Parker’s constructive trust claim on the Harbor Lane property was filed in good faith by failing to present any evidence that the claim was groundless and filed in bad faith or to harass. See, e.g., PR Invs., 180 S.W.3d at 671-72 (holding trial court erred in imposing sanctions under Rule 13 where there was no evidence at hearing that petitions were groundless and brought in bad faith or for purpose of harassment); Elkins, 103 S.W.3d at 668-69 (holding trial court abused its discretion in imposing sanctions against attorney for filing motion for sanctions because no evidence of attorney’s motive in filing motion was presented at hearing and thus there was no evidence of bad faith or harassment); see also $19,070.00 v. State, 869 S.W.2d 608, 611B12 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("When there are no findings of fact in an appeal from a trial to the court, the reviewing court must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence." (emphasis added)). We accordingly hold that the trial court abused its discretion in imposing sanctions on Parker.
We sustain issue five, and, because we find this issue dispositive, we need not address Parker’s additional issues. We thus reverse the trial court’s award of sanctions and render judgment that Walton take nothing.
/s/ Leslie B. Yates
Justice
Judgment rendered and Opinion filed August 28, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
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[1] Although Parker maintains that Walton joined her in the divorce proceeding, we cannot verify the accuracy of this assertion because the record fails to contain the pleadings filed in the proceeding. However, because Walton does not challenge this factual assertion, we will accept it as true. See Tex. R. App. P. 38.1(f); Choice v. Gibbs, 222 S.W.3d 832, 836 n.6 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
[2] Parker contends that Walton did not in fact file a new motion for sanctions after trial on December 15 but simply set a hearing on a motion for sanctions Walton previously filed on December 5 that the trial court struck as untimely on December 6. Thus, Parker concludes there was no live motion for sanctions pending before the court on which it could have rendered judgment. The record contains conflicting documentation to this end; however, because it will not affect the outcome of our decision, we need not address this issue.
[3] The trial court also granted Walton’s requests to enter the final judgment and decree of divorce and to release the lis pendens.
[4] In issue one, Parker claims the trial court’s July 13 order of sanctions was void and requests us to reverse and render a judgment denying Walton sanctions on this ground. Specifically, Parker claims the trial court’s oral pronouncement at the hearing was insufficient to render an order granting sanctions because it contemplated a future reduction of the order to writing by January 6, which did not occur. Thus, Parker concludes, the trial court’s entry of the July 13 written order after the court’s plenary power had expired was void. Upon our review of the trial court’s oral pronouncement and the surrounding context, we conclude the court in fact orally rendered an order granting Walton’s prejudgment motion for sanctions, and, thus, the trial court properly entered such order subsequently via nunc pro tunc. See generally Hannon v. Henson, 15 S.W.2d 579, 583 (Tex. Comm’n App. 1929) (holding that where evidence shows judgment has been actually rendered but not properly entered on record, trial court has power to order entry of such judgment nunc pro tunc); Ex parte Cole, 778 S.W.2d 599, 600 (Tex. App.-Houston [14th Dist.] 1989, no writ) (noting that order is valid when orally pronounced in open court and that formal entry of orally rendered order constitutes only ministerial act). We overrule issue one.
[5] Because we find that Walton failed to meet her burden to justify sanctions with respect to the constructive trust claim that gave rise to the lis pendens, we need not determine whether the lis pendens was by itself sanctionable under Rule 13 or otherwise. See generally Sharif Munir Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 428B29 (Tex. App.-Dallas 1990, writ denied) (noting that party had "statutory right to advise one and all by lis pendens of the lawsuit he filed" with respect to real estate in dispute and declining to allow imposition of sanctions against party Afor exercising his right to file suit and notice of lis pendens").
[6] We note that our record contains only an excerpt of the transcript from the charge conference.
[7] Parker also complains that the judgment nunc pro tunc imposing sanctions fails to comply with Rule 13. See Tex. R. Civ. P. 13 ("No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order."); PR Invs., 180 S.W.3d at 672 (noting that trial court has duty to set forth expressly and with particularity acts or omissions on which it based Rule 13 sanctions). However, because Parker failed to raise this objection to the trial court, she waived this complaint. See Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding that party waived complaint that sanctions order lacked particularized findings of good cause because party failed to object on this ground in trial court).
Appeal from County Court No. 3 of Galveston County
Disposition: REVERSED AND RENDERED:
O P I N I O N
In five issues, appellant Mary Ann Parker challenges the trial court’s order imposing sanctions against her for recording a lis pendens on property awarded to appellee Sheryl King Walton in a divorce proceeding. We reverse the trial court’s sanctions order and render judgment that Walton take nothing.
I. Factual and Procedural Background
On July 1, 2003, Walton filed for divorce from her husband, Ronnie Joe Walton ("Ronnie Joe"). Ronnie Joe’s mother, Mary Ann Parker, was subsequently joined in the divorce proceeding to litigate claims by Walton regarding two properties at issue in the divorce, including property in Walton’s name located at 84 Harbor Lane in Kemah, Texas.[1] Parker counter-claimed based upon her alleged ownership interest in the Harbor Lane property and attempted to impose a constructive trust. During the course of the litigation, Walton sought to refinance the mortgage on the Harbor Lane property to obtain a lower interest rate. Walton sought authorization from the trial court to refinance the property, and, at a hearing on July 27, 2005, the court orally granted her such authorization. The following week, on August 3, Parker’s attorneys recorded a lis pendens on the Harbor Lane property, which Walton claims precluded her from refinancing. At the ensuing divorce trial on December 6-9, the trial court awarded Walton the Harbor Lane property as her separate property. The court did not submit Parker’s constructive trust claim to the jury.
Thereafter, on December 15, Walton filed a motion for sanctions against Parker, Parker’s attorneys, Ronnie Joe, and Ronnie Joe’s attorneys under Texas Rule of Civil Procedure 13, generally alleging that they filed groundless claims in bad faith and/or to harass her.[2] On December 19, Parker responded, contending that Walton failed to meet her burden to show Parker’s claims were groundless or brought in bad faith or for the purpose of harassment and complaining that the motion was too vague to provide proper notice. At the hearing on December 21, Walton, through her testimony and her attorney’s arguments, principally alleged that Parker recorded the lis pendens to prevent her from refinancing the property and to undermine the court’s order authorizing refinancing. Walton testified that her inability to refinance and obtain a lower interest rate caused her to incur significant costs in additional interest and other charges. Parker’s attorney, Toni Sharretts, responded that, although she was aware Walton might attempt to refinance the property, she recorded the lis pendens only to protect her client’s interests and not to prevent Walton from refinancing. She explained that she was unaware of the hearing or the court’s order when she recorded the lis pendens, as she never received a copy of the motion or other notice, and thus she could not have recorded the lis pendens to undermine the court’s order. According to Sharretts, she first learned of the court’s order when Walton’s attorney contacted her demanding a release of the lis pendens.
Incredulous that the hearing took place or that the court gave such an order, Sharretts requested a copy of documentation reflecting the court’s order, which Walton failed to provide. Walton’s attorney, on the other hand, informed the trial court he properly served all parties in the case with the motion and noted that Ronnie Joe appeared at the motion hearing to contest the refinancing. Walton’s attorney maintained, and Sharretts admitted, that he told her the lis pendens precluded refinancing when he requested that she release it, but she still refused. Although our record does not contain any written documentation of the court’s order, the trial judge stated that he "remember[ed] the motion" and "recall[ed] permitting [Walton] to refinance."
At the close of the hearing, the trial court stated, "All right. I’m going to grant your motion, and I’m going to award the sanctions at . . . $3,500 in the attorney’s fees, and I’m going to award 6,750 in the difference in the interest rates . . . ." After the court’s pronouncement, Walton’s attorney stated that he would prepare a "separate order on that and submit it to opposing counsel."[3] The docket sheet entry from the day of the hearing accordingly reads, "Mot for sanctions granted per order to be filed by Petitioner on or before 1/6/06." However, Walton’s attorney did not file, and the court did not sign and enter, a written judgment signifying the sanctions order on or before January 6, 2006. According to Walton, this was an "inadvertent mistake," and, on June 22, 2006, Walton’s attorney filed a motion to enter judgment nunc pro tunc on the sanctions order. Parker opposed the motion, arguing that a judgment nunc pro tunc operates only to correct a clerical error in a written judgment, and, because no written order existed, a judgment nunc pro tunc was improper. The trial court granted Walton’s motion and entered the judgment nunc pro tunc on the sanctions order on July 13, 2006, awarding sanctions against "Mary Ann Parker" for "sanctionable conduct."[4]
Parker now appeals, claiming the trial court abused its discretion in imposing sanctions against her for recording the lis pendens against the Harbor Lane property.
II. Standard of Review
We review the trial court’s imposition of Rule 13 sanctions for an abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. To determine if the sanctions were appropriate or just, the appellate court must ensure there is a direct nexus between the improper conduct and the sanction imposed. Id.
III. Analysis
We first address the second sub-point under Parker’s fifth issue, in which she contends that Walton failed to overcome the presumption that Parker recorded the lis pendens on the Harbor Lane property in good faith to put third parties on notice of the pending litigation concerning the property. Walton counters that the trial court sanctioned Parker not only for recording a lis pendens but also for filing the groundless constructive trust claim against the property "which Walton characterizes as her "homestead" that formed the basis of the lis pendens. Texas Rule of Civil Procedure 13 authorizes imposition of sanctions against an attorney, a represented party, or both, who file pleadings that are (1) groundless and brought in bad faith or (2) groundless and brought to harass. See Tex. R. Civ. P. 13; City of Houston v. Chambers, 899 S.W.2d 306, 309 (Tex. App.-Houston [14th Dist.] 1995, no writ). When determining whether Rule 13 sanctions are proper, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. See State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d 654, 670 (Tex. App.-Houston [14th Dist.] 2005, pet. granted); Neely v. Comm’n for Lawyer Discipline, 976 S.W.2d 824, 828 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Rule 13 requires sanctions based on the acts or omissions of the represented party or counsel and not merely on the legal merit of the pleading. See PR Invs., 180 S.W.3d at 670; Neely, 976 S.W.2d at 828. The trial court must provide notice and hold an evidentiary hearing "to make the necessary factual determinations about the motives and credibility of the person signing the groundless petition." Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.-Houston [14th Dist.] 1997, no writ). "Groundless" means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Tex. R. Civ. P. 13. Bad faith is not simply bad judgment or negligence; rather, it is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. See PR Invs., 180 S.W.3d at 670. Improper motive is an essential element of bad faith. Elkins v. Stotts Brown, 103 S.W.3d 664, 669 (Tex. App.-Dallas 2003, no pet.). Harassment means that the pleading was intended to annoy, alarm, and abuse another person. See PR Invs., 180 S.W.3d at 670. Courts must presume that papers are filed in good faith, and the party moving for sanctions bears the burden of overcoming this presumption. Id.
Walton maintains that Parker’s constructive trust claim was groundless and brought in bad faith and to harass because the trial court refused submission of this claim to the jury at trial, which signaled that the court found no evidence to support it. She further asserts that Parker recorded the lis pendens in bad faith and to harass because she did so only a few days after the court authorized refinancing of the property over Ronnie Joe’s objection, and the lis pendens effectively prevented her from refinancing. Walton notes that, on the day of the sanctions hearing, the trial court "had the entire record of the case before [it]," which shows that both the constructive trust claim and lis pendens were "clearly malicious." Walton adds that Parker’s failure to request findings of fact and conclusions of law constitutes an additional basis for affirming the court’s sanctions order.
We agree with Parker that Walton failed to overcome the presumption that Parker filed her constructive trust claim regarding the Harbor Lane property "and, by extension, the lis pendens"in good faith.[5] At the sanctions hearing, Walton focused exclusively on Parker’s recording of the lis pendens and failed to adduce any evidence showing Parker’s claim, on which the lis pendens was based, was groundless and brought in bad faith or to harass. As to groundlessness, the only statement from the hearing that we construe as relevant to this issue is Walton’s attorney’s statement to the trial court, "It’s difficult for me to understand why they took an interest in [the Harbor Lane property because it] is owned by my clients." The record is otherwise devoid of evidence showing that Parker’s underlying claim lacked a basis in law or fact and was not warranted by a good faith argument for the extension, modification, or reversal of existing law. The record does not contain the pleadings filed in the divorce proceeding or a transcript of the trial record. Further, although the final divorce decree indicates the Harbor Lane property was in Walton’s name and that the constructive trust claim was not in fact submitted to the jury, the decree does not specify that Parker’s claim was groundless. Nor did the court or the parties so specify during the charge conference[6] or in the judgment nunc pro tunc imposing the sanctions, which does not set forth with particularity the acts or omissions on which the sanctions are based.[7] Moreover, we reject Walton’s summary conclusion that
Parker’s claim was groundless simply because the trial court refused to submit it to the jury. Walton does not cite, and we do not find, any authority holding that the court’s refusal to submit a claim to the jury in itself establishes that the claim was groundless. See generally GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993) (noting that Rule 13 does not permit sanctions for every pleading or motion requesting relief that is denied).
Similarly, Walton failed to adduce any evidence at the hearing indicating Parker filed the constructive trust claim in bad faith or to harass. The testimony at the hearing focused largely on Parker’s attorneys’ purpose for recording the lis pendens and whether they had notice of the trial court’s order authorizing financing. Such evidence does not adequately explain the facts and circumstances existing at the time Parker filed the constructive trust or the motives, intent, and credibility of Parker or her attorneys in so filing. See Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.-Fort Worth 1995, no writ) (noting that without hearing evidence on circumstances surrounding filing of pleading signer’s credibility and motives, trial court has no evidence to determine that pleading was filed in bad faith or to harass). Again, Walton simply points to the timing of the lis pendens as directly subsequent to the trial court’s order authorizing refinancing and the court’s refusal to submit the constructive trust claim to the jury as conclusive evidence that Parker filed the claim in bad faith and to harass. Therefore, even absent findings of fact and conclusions of law, we conclude Walton failed to overcome the presumption that Parker’s constructive trust claim on the Harbor Lane property was filed in good faith by failing to present any evidence that the claim was groundless and filed in bad faith or to harass. See, e.g., PR Invs., 180 S.W.3d at 671-72 (holding trial court erred in imposing sanctions under Rule 13 where there was no evidence at hearing that petitions were groundless and brought in bad faith or for purpose of harassment); Elkins, 103 S.W.3d at 668-69 (holding trial court abused its discretion in imposing sanctions against attorney for filing motion for sanctions because no evidence of attorney’s motive in filing motion was presented at hearing and thus there was no evidence of bad faith or harassment); see also $19,070.00 v. State, 869 S.W.2d 608, 611B12 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("When there are no findings of fact in an appeal from a trial to the court, the reviewing court must affirm the judgment if it can be upheld on any legal theory that finds support in the evidence." (emphasis added)). We accordingly hold that the trial court abused its discretion in imposing sanctions on Parker.
We sustain issue five, and, because we find this issue dispositive, we need not address Parker’s additional issues. We thus reverse the trial court’s award of sanctions and render judgment that Walton take nothing.
/s/ Leslie B. Yates
Justice
Judgment rendered and Opinion filed August 28, 2007.
Panel consists of Justices Yates, Edelman, and Seymore.
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[1] Although Parker maintains that Walton joined her in the divorce proceeding, we cannot verify the accuracy of this assertion because the record fails to contain the pleadings filed in the proceeding. However, because Walton does not challenge this factual assertion, we will accept it as true. See Tex. R. App. P. 38.1(f); Choice v. Gibbs, 222 S.W.3d 832, 836 n.6 (Tex. App.-Houston [14th Dist.] 2007, no pet.).
[2] Parker contends that Walton did not in fact file a new motion for sanctions after trial on December 15 but simply set a hearing on a motion for sanctions Walton previously filed on December 5 that the trial court struck as untimely on December 6. Thus, Parker concludes there was no live motion for sanctions pending before the court on which it could have rendered judgment. The record contains conflicting documentation to this end; however, because it will not affect the outcome of our decision, we need not address this issue.
[3] The trial court also granted Walton’s requests to enter the final judgment and decree of divorce and to release the lis pendens.
[4] In issue one, Parker claims the trial court’s July 13 order of sanctions was void and requests us to reverse and render a judgment denying Walton sanctions on this ground. Specifically, Parker claims the trial court’s oral pronouncement at the hearing was insufficient to render an order granting sanctions because it contemplated a future reduction of the order to writing by January 6, which did not occur. Thus, Parker concludes, the trial court’s entry of the July 13 written order after the court’s plenary power had expired was void. Upon our review of the trial court’s oral pronouncement and the surrounding context, we conclude the court in fact orally rendered an order granting Walton’s prejudgment motion for sanctions, and, thus, the trial court properly entered such order subsequently via nunc pro tunc. See generally Hannon v. Henson, 15 S.W.2d 579, 583 (Tex. Comm’n App. 1929) (holding that where evidence shows judgment has been actually rendered but not properly entered on record, trial court has power to order entry of such judgment nunc pro tunc); Ex parte Cole, 778 S.W.2d 599, 600 (Tex. App.-Houston [14th Dist.] 1989, no writ) (noting that order is valid when orally pronounced in open court and that formal entry of orally rendered order constitutes only ministerial act). We overrule issue one.
[5] Because we find that Walton failed to meet her burden to justify sanctions with respect to the constructive trust claim that gave rise to the lis pendens, we need not determine whether the lis pendens was by itself sanctionable under Rule 13 or otherwise. See generally Sharif Munir Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 428B29 (Tex. App.-Dallas 1990, writ denied) (noting that party had "statutory right to advise one and all by lis pendens of the lawsuit he filed" with respect to real estate in dispute and declining to allow imposition of sanctions against party Afor exercising his right to file suit and notice of lis pendens").
[6] We note that our record contains only an excerpt of the transcript from the charge conference.
[7] Parker also complains that the judgment nunc pro tunc imposing sanctions fails to comply with Rule 13. See Tex. R. Civ. P. 13 ("No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order."); PR Invs., 180 S.W.3d at 672 (noting that trial court has duty to set forth expressly and with particularity acts or omissions on which it based Rule 13 sanctions). However, because Parker failed to raise this objection to the trial court, she waived this complaint. See Appleton v. Appleton, 76 S.W.3d 78, 87 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (holding that party waived complaint that sanctions order lacked particularized findings of good cause because party failed to object on this ground in trial court).
Quickie marriage to much younger bride has unhappy ending
Ronnie Jean Davis, Sr. v. Lisa T. Davis, No. 03-06-00461-CV (Tex.App.- Austin, Sep. 12, 2007)(Opinion by Justice Patterson)(property division, separate property, short marriage)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 169th District Court of Bell County
Disposition: Affirmed
M E M O R A N D U M O P I N I O N
In three issues, appellant Ronnie Gene Davis, who is incarcerated and acting pro se, challenges a divorce decree dissolving the marriage between himself and appellee Lisa T. Davis. He contests the trial court's exclusion of evidence and its property division between the parties. Finding no error in the trial court's ruling, we affirm the judgment.
Ms. Davis's original petition for divorce was filed on August 16, 2005. Mr. Davis failed to appear at trial and the divorce decree was signed. After the trial court granted a motion for new trial in January 2006, the court set a hearing for June 5, 2006. Mr. Davis appeared at the hearing by telephone.
As a result of the hearing, the trial court granted the divorce and judgment was rendered on July 13, 2006. The parties were awarded the household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in their possession or subject to their sole control; cash or funds in their sole names or from which they have the sole right to withdraw funds; retirement and pension plans, and other benefits existing from their individual employments; and life insurance policies insuring their individual lives. Mr. Davis was also awarded his tools, an eighteen-foot boat and trailer, and a van motor vehicle. Ms. Davis was awarded an Oldsmobile Cutlass motor vehicle. The trial court confirmed as Ms. Davis's separate property land consisting of 0.126 acre of land located at 204 Martin Luther King Drive, Temple, Texas.
In his statement of facts on appeal, Mr. Davis described his marriage to Ms. Davis, who was twenty years younger and whom he married seven days after meeting her on March 6, 2003.
Mr. Davis alleges that she abandoned him eight months after they married and that she obtained a quitclaim deed for the Temple property from him through fraud. In three points of error, Mr. Davis primarily complains that the trial court abused its discretion in the division of community property. Specifically, Mr. Davis complains that it is unreasonable for Ms. Davis to receive community property, and particularly the Temple property, after only eight months of marriage. He also urges that she obtained the property through fraud by having him sign the deed over to her and therefore the court erred in excluding his mental health history, i.e., that he was receiving veterans' benefits because he was 100% disabled, to support his claim. He also urges that the trial court erred in not allowing discovery he requested. (1)
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. at 699-700.
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). The trial court specifically found that the Temple property was the separate property of Ms. Davis and the record shows the admission of a quitclaim deed supporting the court's confirmation.
Except for a reference to the quitclaim deed offered into evidence by Ms. Davis, there is no other evidence in the record. There is no transcript of the hearing. Without any controverting evidence as to the characterization of the Temple property, Mr. Davis failed to carry his burden to successfully challenge the property characterization. There is no evidence in the record to support Mr. Davis's arguments or that any of the issues are preserved for review. We therefore cannot say that the trial court abused its discretion in its division of property or in its exclusion of evidence. We overrule appellant's points of error.
Having found no reversible error, we affirm the judgment of the trial court.
_________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 12, 2007
1. The record shows that Mr. Davis filed a request for discovery of the "original lease agreement and the date of deposit for her separate resident's [sic] in the Glenn Apartments, Temple, Texas." There is no showing that Mr. Davis set the motion for a hearing or otherwise followed up on this request. He therefore has not preserved error on this point.
Appeal from 169th District Court of Bell County
Disposition: Affirmed
M E M O R A N D U M O P I N I O N
In three issues, appellant Ronnie Gene Davis, who is incarcerated and acting pro se, challenges a divorce decree dissolving the marriage between himself and appellee Lisa T. Davis. He contests the trial court's exclusion of evidence and its property division between the parties. Finding no error in the trial court's ruling, we affirm the judgment.
Ms. Davis's original petition for divorce was filed on August 16, 2005. Mr. Davis failed to appear at trial and the divorce decree was signed. After the trial court granted a motion for new trial in January 2006, the court set a hearing for June 5, 2006. Mr. Davis appeared at the hearing by telephone.
As a result of the hearing, the trial court granted the divorce and judgment was rendered on July 13, 2006. The parties were awarded the household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, equipment, clothing, jewelry, and other personal effects in their possession or subject to their sole control; cash or funds in their sole names or from which they have the sole right to withdraw funds; retirement and pension plans, and other benefits existing from their individual employments; and life insurance policies insuring their individual lives. Mr. Davis was also awarded his tools, an eighteen-foot boat and trailer, and a van motor vehicle. Ms. Davis was awarded an Oldsmobile Cutlass motor vehicle. The trial court confirmed as Ms. Davis's separate property land consisting of 0.126 acre of land located at 204 Martin Luther King Drive, Temple, Texas.
In his statement of facts on appeal, Mr. Davis described his marriage to Ms. Davis, who was twenty years younger and whom he married seven days after meeting her on March 6, 2003.
Mr. Davis alleges that she abandoned him eight months after they married and that she obtained a quitclaim deed for the Temple property from him through fraud. In three points of error, Mr. Davis primarily complains that the trial court abused its discretion in the division of community property. Specifically, Mr. Davis complains that it is unreasonable for Ms. Davis to receive community property, and particularly the Temple property, after only eight months of marriage. He also urges that she obtained the property through fraud by having him sign the deed over to her and therefore the court erred in excluding his mental health history, i.e., that he was receiving veterans' benefits because he was 100% disabled, to support his claim. He also urges that the trial court erred in not allowing discovery he requested. (1)
The family code requires the trial court to divide the estate of the parties in a manner that is just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (West 2006); see Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). We review property division issues for abuse of discretion. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The trial court has broad discretion in dividing the marital estate at divorce. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We must presume that the trial court exercised it properly and may not alter the division unless the complaining party establishes a clear abuse of the trial court's discretion. Id. at 699-700.
All property on hand at the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006). This is a rebuttable presumption, requiring a spouse claiming assets as separate property to establish their separate character by clear and convincing evidence. Id. § 3.003(a)-(b). The trial court specifically found that the Temple property was the separate property of Ms. Davis and the record shows the admission of a quitclaim deed supporting the court's confirmation.
Except for a reference to the quitclaim deed offered into evidence by Ms. Davis, there is no other evidence in the record. There is no transcript of the hearing. Without any controverting evidence as to the characterization of the Temple property, Mr. Davis failed to carry his burden to successfully challenge the property characterization. There is no evidence in the record to support Mr. Davis's arguments or that any of the issues are preserved for review. We therefore cannot say that the trial court abused its discretion in its division of property or in its exclusion of evidence. We overrule appellant's points of error.
Having found no reversible error, we affirm the judgment of the trial court.
_________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: September 12, 2007
1. The record shows that Mr. Davis filed a request for discovery of the "original lease agreement and the date of deposit for her separate resident's [sic] in the Glenn Apartments, Temple, Texas." There is no showing that Mr. Davis set the motion for a hearing or otherwise followed up on this request. He therefore has not preserved error on this point.
Denial of jury trial merits reversal of order terminating parental rights
In the Interest of M.A., No. 14-05-00579-CV (Tex.App.- Houston [14th Dist.] Oct. 4, 2007)(Opinion by Justice Mirabal)(termination)(Before Justices Anderson, Frost and Mirabal)
Appeal from 313th District Court of Harris County
Disposition: AFFIRMED IN PART; REVERSED & REMANDED IN PART
M E M O R A N D U M O P I N I O N
After a bench trial, the trial court terminated the parental rights of the mother and father of M.A., who was 22 years old at the time of trial. The maternal grandfather of M.A. (the grandfather) was named sole managing conservator. The mother appeals, complaining that reversible error was committed when she was denied a jury trial, and raising sufficiency of the evidence issues as to termination and conservatorship. Applying controlling principles of law set out in Texas Supreme Court and Fourteenth Court of Appeals cases, we reverse and remand.
Background
On May 27, 2003, the Texas Department of Protective and Regulatory Services (TDPRS) filed, against M.A.’s mother and father, an "Original Petition for Protection of A Child, for Conservatorship, and for Termination in Suit Affecting The Parent Child Relationship." The grandfather subsequently filed a "Petition in Intervention for Conservatorship" seeking termination of the mother’s and father’s parental rights and the appointment of himself, the grandfather, as the sole managing conservator of M.A. At the initial hearing in the case, the grandfather was named Temporary Possessory Conservator of M.A., and TDPRS was named Temporary Managing Conservator.
On October 13, 2004, the mother filed a Request for Jury Trial, and on October 14, 2004, the mother paid the jury fee.
On the trial date, November 17, 2004, the grandfather filed a handwritten "Motion to Quash Request for Jury Trial." The Associate Judge granted the motion, denied the mother’s request for a jury trial, and immediately proceeded with a bench trial. After two days of testimony, the Associate Judge ruled that the parental rights of the mother and father were to be terminated, and designated the grandfather as permanent managing conservator. The Presiding Judge affirmed the rulings of the Associate Judge.
The mother alone has appealed.[1] The grandfather filed an appellee’s brief on appeal. No brief was filed on behalf of TDPRS.
Analysis
I. Right to Jury Trial
In her fifth issue, the mother asserts the trial court committed reversible error by denying her a jury trial after she had timely requested and paid for a jury trial.
A. Standard of Review
A trial court’s denial of a party’s demand for a jury trial is reviewed under an abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We are required to review the entire record. Id. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
B. Jury Demands in Civil Cases
"The right to a jury trial is one of our most precious rights, holding >a sacred place in English and American history.’" Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (quoting White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917)). With regard to civil cases, Rule 216 of the Texas Rules of Civil Procedure provides:
a. Request. No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.
b. Jury Fee. Unless otherwise provided by law, a fee . . . must be deposited with the clerk of the court within the time for making a written request for a jury trial. . . . Tex. R. Civ. P. 216.
The mother filed her request for a jury trial, and paid the jury fee, more than thirty days prior to trial. A request for a jury trial made in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991); In re J.N.F., 116 S.W.3d 426, 436 (Tex. App.-Houston [14th Dist.] 2003, no pet.). A party may rebut the presumption by showing that the granting of a jury trial would operate to injure the adverse party, disrupt the court’s docket, or impede the ordinary handling of the court’s business. Halsell, 810 S.W.2d at 371. Such evidence must appear in the record. In re J.N.F., 116 S.W.3d at 436.
C. The Trial Court Erred
The record of the pretrial hearing regarding the mother’s request for a jury trial shows the following:
$ The mother’s counsel advised the court that she filed the request for a jury trial more than thirty days before the trial date, and the mother wanted to proceed with the jury trial on that day.
$ The attorney ad litem for the child, M.A., did not object to a jury trial, stating, "Pull a panel
over, we’ll start."
$ The attorney for the father stated, AI have no problem with a court trial, jury trial, whatever they want. It doesn’t matter to me."
$ The attorney for the TDPRS expressed no objection to the case proceeding with a jury trial on that day.[2]
$ The attorney for the grandfather tendered to the court for filing a handwritten "Motion to Quash Request for Jury Trial." He told the court that he had received notice on November 2 (15 days before trial) that the mother had requested a jury trial.[3] He did not state he was not prepared that day for a jury trial, but rather claimed "injury" would result to the parties, and the court’s docket would be disrupted, if there was a continuance of the trial date.[4] He further opined that "if a [jury request] is timely filed with proper service . . . it will impede the ordinary handling of the court’s business," again addressing the effect of a continuance, not the effect of a jury trial that day.
From this record, we conclude there is no evidence rebutting the presumption that the mother’s request for a jury trial was made a reasonable time before trial. There is no evidence that proceeding with the jury trial on that day, November 17, would have (1) operated to injure the adverse party, (2) disrupted the court’s docket, or (3) impeded the ordinary handling of the court’s business. Accordingly, the trial court abused its discretion in denying the mother’s request for a jury trial. See Halsell, 810 S.W.2d at 371-72.[5]
D. Error Was Harmful
A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified. See Halsell, 810 S.W.2d at 372; In re J.N.F., 116 S.W.3d at 437.
In the present case, there was a great deal of conflicting evidence regarding the extent of the mother’s continued drug use, her ability to provide for her child, and whether she or the grandfather would be the better caretaker of M.A. We note that up until about one month before trial, the TDPRS consistently indicated that it was in favor of M.A. being reunited with the mother.
The conflicting evidence clearly raised fact issues so that an instructed verdict terminating the mother’s parental rights, and naming the grandfather the sole permanent managing conservator would not have been justified. See In re M.N.V., 216 S.W.3d 833, 835 (Tex. App.-San Antonio 2006, no pet.) (holding that testimony from terminated parent that she did not want her rights terminated, and evidence that she had in part completed her family service plan were sufficient to present material issues of fact as to the best interest determination, even in light of evidence of prior drug abuse); In re J.C., 108 S.W.3d 914, 917 (Tex. App.-Texarkana 2003, no pet.) (holding that terminated parent’s testimony that termination would not be in best interest of the child was sufficient to defeat a motion for instructed verdict).
Accordingly, we conclude that the trial court’s refusal to grant a jury trial amounted to harmful error. Therefore, we sustain issue five.
II. Legal Sufficiency of the Evidence
In other issues in her brief, the mother attacks the legal and factual sufficiency of the evidence to support the termination of her parental rights and the sole managing conservator appointment. It is not necessary to address the factual sufficiency challenge, which would require a remand if sustained, because our disposition of issue five above requires a remand. See Gemoets v. State, 116 S.W.3d 59, 65 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (stating that the appropriate remedy for reversal on a factual sufficiency issue is remand for a new trial). We address the legal sufficiency of the evidence complaint.
A. Standard of Review
In order to terminate parental rights, the State must prove both that the parent has committed one of the enumerated acts worthy of termination, and that termination of parental rights is in the best interest of the child. See Tex. Fam. Code § 161.001. The burden of proof at trial is clear and convincing evidence. Id. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. § 101.007.
When reviewing the legal sufficiency of the evidence under this standard, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court assumes that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude the evidence is legally insufficient. Id.
The Texas Supreme Court has enumerated a list of factors that may be considered by courts in ascertaining the best interest of the child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27-8 (Tex. 2002).
B. Evidence Is Legally Sufficient to Show the Mother Committed an Act that is Ground for Termination
We note that the mother no longer lives with M.A.’s father. However, there is evidence that while the mother was in Austin living with M.A.’s father, she knowingly allowed M.A. to remain in conditions or surroundings that endangered M.A.’s physical and emotional well-being. The evidence includes the following: the mother and M.A.’s father used crack/cocaine on a daily basis with M.A. in the house; M.A.’s father was regularly verbally and physically abusive toward the mother; M.A.’s father threatened the mother that he would hurt or kill M.A., yet M.A.’s father was M.A.’s caretaker while the mother was at work; M.A. had bruises and scratches and burn marks on her when she was placed with the grandfather, which the mother said must have been caused by M.A.’s father. We conclude the foregoing constitutes legally sufficient evidence to support the finding that the mother had knowingly allowed M.A. to remain in conditions or surroundings which endangered M.A.’s physical or emotional well-being. See In re J.F.C., 96 S.W.3d at 266.
C. Evidence is Legally Sufficient to Support Finding that Termination of Parental Rights and Placement with the Grandfather is in Best Interest of Child
Although there was conflicting evidence, viewing the evidence in the light most favorable to the court’s findings we note the following evidence: M.A. was underweight and withdrawn when she came into the grandfather’s care; the mother has a volatile temperament and appears to suffer from bipolar disorder and borderline personality disorder; the mother failed or did not take several drug tests under the safety plan; the mother lives with the grandmother (who is divorced from the grandfather), and the grandmother has tested positive for drugs during the pendency of this case; the mother has missed visitation with M.A. several times since the grandfather has been possessory conservator of M.A.; the Houston social worker testified that when she stopped by the grandfather’s home to check on M.A., the house was child-friendly and M.A. appeared to be a happy and outgoing child. We conclude there is legally sufficient evidence to support a finding that the termination of the mother’s parental rights and placement with the grandfather was in the best interest of M.A. See In re J.F.C., 96 S.W.3d at 266.
Accordingly, we overrule the mother’s issues attacking the legal sufficiency of the evidence.
Conclusion
Because the trial court committed harmful error in denying the mother a jury trial, we reverse those portions of the judgment terminating the mother’s parental rights and naming the grandfather the sole managing conservator, and we remand to the trial court for further proceedings consistent with this opinion. We affirm the remainder of the trial court’s judgment.
/s/ Margaret Garner Mirabal, Senior Justice
Judgment rendered and Memorandum Opinion filed October 4, 2007.
Panel consists of Justices Anderson and Frost and Senior Justice Mirabal.*
*Senior Justice Margaret G. Mirabal sitting by assignment.
--------------------------------------------------------------------------------
[1] The father is not a party to this appeal.
[2] Counsel for TDPRS did state that if the trial would be continued, then he would ask for certain measures to be taken. However, he did not object to a jury trial taking place on the current trial date, November 17.
[3] The grandfather argues that because he did not receive notice of the jury request at least thirty days before trial, the jury request should not get the benefit of having been filed more than thirty days before trial. This argument is contrary to Rule 216, Texas Rules of Civil Procedure, and the case law.
[4] However, no party had asked for a continuance of the trial on the termination of parental rights issues.
[5] We note that the grandfather relies on Crittenden v. Crittenden, 52 S.W.3d 768, 770 (Tex. App.-San Antonio 2001, pet. denied). However, unlike the record in Crittenden, there is an absence of proof in the present case.
Appeal from 313th District Court of Harris County
Disposition: AFFIRMED IN PART; REVERSED & REMANDED IN PART
M E M O R A N D U M O P I N I O N
After a bench trial, the trial court terminated the parental rights of the mother and father of M.A., who was 22 years old at the time of trial. The maternal grandfather of M.A. (the grandfather) was named sole managing conservator. The mother appeals, complaining that reversible error was committed when she was denied a jury trial, and raising sufficiency of the evidence issues as to termination and conservatorship. Applying controlling principles of law set out in Texas Supreme Court and Fourteenth Court of Appeals cases, we reverse and remand.
Background
On May 27, 2003, the Texas Department of Protective and Regulatory Services (TDPRS) filed, against M.A.’s mother and father, an "Original Petition for Protection of A Child, for Conservatorship, and for Termination in Suit Affecting The Parent Child Relationship." The grandfather subsequently filed a "Petition in Intervention for Conservatorship" seeking termination of the mother’s and father’s parental rights and the appointment of himself, the grandfather, as the sole managing conservator of M.A. At the initial hearing in the case, the grandfather was named Temporary Possessory Conservator of M.A., and TDPRS was named Temporary Managing Conservator.
On October 13, 2004, the mother filed a Request for Jury Trial, and on October 14, 2004, the mother paid the jury fee.
On the trial date, November 17, 2004, the grandfather filed a handwritten "Motion to Quash Request for Jury Trial." The Associate Judge granted the motion, denied the mother’s request for a jury trial, and immediately proceeded with a bench trial. After two days of testimony, the Associate Judge ruled that the parental rights of the mother and father were to be terminated, and designated the grandfather as permanent managing conservator. The Presiding Judge affirmed the rulings of the Associate Judge.
The mother alone has appealed.[1] The grandfather filed an appellee’s brief on appeal. No brief was filed on behalf of TDPRS.
Analysis
I. Right to Jury Trial
In her fifth issue, the mother asserts the trial court committed reversible error by denying her a jury trial after she had timely requested and paid for a jury trial.
A. Standard of Review
A trial court’s denial of a party’s demand for a jury trial is reviewed under an abuse of discretion standard. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). We are required to review the entire record. Id. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
B. Jury Demands in Civil Cases
"The right to a jury trial is one of our most precious rights, holding >a sacred place in English and American history.’" Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (quoting White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917)). With regard to civil cases, Rule 216 of the Texas Rules of Civil Procedure provides:
a. Request. No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance.
b. Jury Fee. Unless otherwise provided by law, a fee . . . must be deposited with the clerk of the court within the time for making a written request for a jury trial. . . . Tex. R. Civ. P. 216.
The mother filed her request for a jury trial, and paid the jury fee, more than thirty days prior to trial. A request for a jury trial made in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991); In re J.N.F., 116 S.W.3d 426, 436 (Tex. App.-Houston [14th Dist.] 2003, no pet.). A party may rebut the presumption by showing that the granting of a jury trial would operate to injure the adverse party, disrupt the court’s docket, or impede the ordinary handling of the court’s business. Halsell, 810 S.W.2d at 371. Such evidence must appear in the record. In re J.N.F., 116 S.W.3d at 436.
C. The Trial Court Erred
The record of the pretrial hearing regarding the mother’s request for a jury trial shows the following:
$ The mother’s counsel advised the court that she filed the request for a jury trial more than thirty days before the trial date, and the mother wanted to proceed with the jury trial on that day.
$ The attorney ad litem for the child, M.A., did not object to a jury trial, stating, "Pull a panel
over, we’ll start."
$ The attorney for the father stated, AI have no problem with a court trial, jury trial, whatever they want. It doesn’t matter to me."
$ The attorney for the TDPRS expressed no objection to the case proceeding with a jury trial on that day.[2]
$ The attorney for the grandfather tendered to the court for filing a handwritten "Motion to Quash Request for Jury Trial." He told the court that he had received notice on November 2 (15 days before trial) that the mother had requested a jury trial.[3] He did not state he was not prepared that day for a jury trial, but rather claimed "injury" would result to the parties, and the court’s docket would be disrupted, if there was a continuance of the trial date.[4] He further opined that "if a [jury request] is timely filed with proper service . . . it will impede the ordinary handling of the court’s business," again addressing the effect of a continuance, not the effect of a jury trial that day.
From this record, we conclude there is no evidence rebutting the presumption that the mother’s request for a jury trial was made a reasonable time before trial. There is no evidence that proceeding with the jury trial on that day, November 17, would have (1) operated to injure the adverse party, (2) disrupted the court’s docket, or (3) impeded the ordinary handling of the court’s business. Accordingly, the trial court abused its discretion in denying the mother’s request for a jury trial. See Halsell, 810 S.W.2d at 371-72.[5]
D. Error Was Harmful
A refusal to grant a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified. See Halsell, 810 S.W.2d at 372; In re J.N.F., 116 S.W.3d at 437.
In the present case, there was a great deal of conflicting evidence regarding the extent of the mother’s continued drug use, her ability to provide for her child, and whether she or the grandfather would be the better caretaker of M.A. We note that up until about one month before trial, the TDPRS consistently indicated that it was in favor of M.A. being reunited with the mother.
The conflicting evidence clearly raised fact issues so that an instructed verdict terminating the mother’s parental rights, and naming the grandfather the sole permanent managing conservator would not have been justified. See In re M.N.V., 216 S.W.3d 833, 835 (Tex. App.-San Antonio 2006, no pet.) (holding that testimony from terminated parent that she did not want her rights terminated, and evidence that she had in part completed her family service plan were sufficient to present material issues of fact as to the best interest determination, even in light of evidence of prior drug abuse); In re J.C., 108 S.W.3d 914, 917 (Tex. App.-Texarkana 2003, no pet.) (holding that terminated parent’s testimony that termination would not be in best interest of the child was sufficient to defeat a motion for instructed verdict).
Accordingly, we conclude that the trial court’s refusal to grant a jury trial amounted to harmful error. Therefore, we sustain issue five.
II. Legal Sufficiency of the Evidence
In other issues in her brief, the mother attacks the legal and factual sufficiency of the evidence to support the termination of her parental rights and the sole managing conservator appointment. It is not necessary to address the factual sufficiency challenge, which would require a remand if sustained, because our disposition of issue five above requires a remand. See Gemoets v. State, 116 S.W.3d 59, 65 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (stating that the appropriate remedy for reversal on a factual sufficiency issue is remand for a new trial). We address the legal sufficiency of the evidence complaint.
A. Standard of Review
In order to terminate parental rights, the State must prove both that the parent has committed one of the enumerated acts worthy of termination, and that termination of parental rights is in the best interest of the child. See Tex. Fam. Code § 161.001. The burden of proof at trial is clear and convincing evidence. Id. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. § 101.007.
When reviewing the legal sufficiency of the evidence under this standard, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court assumes that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude the evidence is legally insufficient. Id.
The Texas Supreme Court has enumerated a list of factors that may be considered by courts in ascertaining the best interest of the child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27-8 (Tex. 2002).
B. Evidence Is Legally Sufficient to Show the Mother Committed an Act that is Ground for Termination
We note that the mother no longer lives with M.A.’s father. However, there is evidence that while the mother was in Austin living with M.A.’s father, she knowingly allowed M.A. to remain in conditions or surroundings that endangered M.A.’s physical and emotional well-being. The evidence includes the following: the mother and M.A.’s father used crack/cocaine on a daily basis with M.A. in the house; M.A.’s father was regularly verbally and physically abusive toward the mother; M.A.’s father threatened the mother that he would hurt or kill M.A., yet M.A.’s father was M.A.’s caretaker while the mother was at work; M.A. had bruises and scratches and burn marks on her when she was placed with the grandfather, which the mother said must have been caused by M.A.’s father. We conclude the foregoing constitutes legally sufficient evidence to support the finding that the mother had knowingly allowed M.A. to remain in conditions or surroundings which endangered M.A.’s physical or emotional well-being. See In re J.F.C., 96 S.W.3d at 266.
C. Evidence is Legally Sufficient to Support Finding that Termination of Parental Rights and Placement with the Grandfather is in Best Interest of Child
Although there was conflicting evidence, viewing the evidence in the light most favorable to the court’s findings we note the following evidence: M.A. was underweight and withdrawn when she came into the grandfather’s care; the mother has a volatile temperament and appears to suffer from bipolar disorder and borderline personality disorder; the mother failed or did not take several drug tests under the safety plan; the mother lives with the grandmother (who is divorced from the grandfather), and the grandmother has tested positive for drugs during the pendency of this case; the mother has missed visitation with M.A. several times since the grandfather has been possessory conservator of M.A.; the Houston social worker testified that when she stopped by the grandfather’s home to check on M.A., the house was child-friendly and M.A. appeared to be a happy and outgoing child. We conclude there is legally sufficient evidence to support a finding that the termination of the mother’s parental rights and placement with the grandfather was in the best interest of M.A. See In re J.F.C., 96 S.W.3d at 266.
Accordingly, we overrule the mother’s issues attacking the legal sufficiency of the evidence.
Conclusion
Because the trial court committed harmful error in denying the mother a jury trial, we reverse those portions of the judgment terminating the mother’s parental rights and naming the grandfather the sole managing conservator, and we remand to the trial court for further proceedings consistent with this opinion. We affirm the remainder of the trial court’s judgment.
/s/ Margaret Garner Mirabal, Senior Justice
Judgment rendered and Memorandum Opinion filed October 4, 2007.
Panel consists of Justices Anderson and Frost and Senior Justice Mirabal.*
*Senior Justice Margaret G. Mirabal sitting by assignment.
--------------------------------------------------------------------------------
[1] The father is not a party to this appeal.
[2] Counsel for TDPRS did state that if the trial would be continued, then he would ask for certain measures to be taken. However, he did not object to a jury trial taking place on the current trial date, November 17.
[3] The grandfather argues that because he did not receive notice of the jury request at least thirty days before trial, the jury request should not get the benefit of having been filed more than thirty days before trial. This argument is contrary to Rule 216, Texas Rules of Civil Procedure, and the case law.
[4] However, no party had asked for a continuance of the trial on the termination of parental rights issues.
[5] We note that the grandfather relies on Crittenden v. Crittenden, 52 S.W.3d 768, 770 (Tex. App.-San Antonio 2001, pet. denied). However, unlike the record in Crittenden, there is an absence of proof in the present case.
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