Splittsville Appeals

2007-2008 Texas Supreme Court SAPCR and Divorce Law Cases

2007-12-31T18:58:00.000-08:00

FAMILY LAW AND CHILD PROTECTION CASES DECIDED BY THE TEXAS SUPREME COURT (2007- )

Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts,
community property survivorship agreement)

In the Interest of E .A ., No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson) (method of service of amended
petition, sufficiency of service by certified mail under rule 21a when Defendant has been served with civil
process, but has not filed an answer or made appearance) (SAPCR modification proceeding brought within
one year of final order in underlying child custody suit).

Hagen v. Hagen, No. 07-1065 (Tex. May 1 2009)(Johnson) (family law, divorce decree, postjudgment clarification order, retirement disability benefits division, res judicata, relitigation)

In Interest of JOA, No. 08-0379 (Tex. May 1, 2009)(Medina)(termination of parental rights appeal,
constitutionality of statement of points requirement for appeal)

In re Coppock, No. 08-0093 (Tex. 2009)(O'Neill)
(contempt in divorce case overturned by habeas corpus)

In Interest of M.N., a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal)
Justice Willett delivered a dissenting opinion (would address constitutional issue avoided by majority)

In Interest of SKA, MA, and SA, No. 07-1045 (Tex. July 25, 2008)(per curiam denial)
(constitutionality of Texas Family Code section 263.4059(i) not decided in this appeal, but pending before the court in another case)

In Re Chambless, No. 07-0767 (Tex. June 27, 2008) (per curiam) (family law, parental rights, grandparent visitation suit)(mandamus granted)

In re OAG, No. 08-0165 (Tex. June 27, 2008) (per curiam) (child support collection, temporary orders, TRO void orders set aside by mandamus)

In Re Zandi, No. 070919 (Tex. May 30, 2008)(per curiam) (child support contempt, habeas corpus relief granted)

In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam) (CPS case against FLDS sect) (Department's mandamus petition in bid to overturn decision of the Austin Court of Appeals requiring return of children to mothers denied)

In Interest of K.C.B., a Child, No. 07-1068 (Tex. Apr. 18, 2008) (per curiam) (right to appeal in termination of parental rights case, procedural requisites for appeal)

Chu v. Hong, No. 06-0127 (Tex. Mar. 28, 2008)(Opinion by Justice Brister)(international family law, divorce marital property division, foreign spouse, community property transfer to third partie) (fraud on community by spouse not actionable as independent tort, no double recovery at the expense of third party, tort claim against husband's attorney also fails)

Alfonso v. Skadden, No. 07-0321 (Tex. Mar. 28, 2008)(per curiam) (international family law issues, divorce and SAPCR child custody jurisdiction, in personam jurisdiction, service by publication, collateral attack on child custody default judgment) (SAPCR order enforcement fails for want of subject-matter jurisdiction)

In the Interest of D.N.C. No. 07-0621 (Tex. 2008) (child protection, CPS, DFPS suit, termination of parental rights, natural parent presumption) (award of conservatorship to child protection agency properly reversed along with termination of parental rights in the absence of independent basis for rebutting parental presumption)

In Interest of J.A.J., No. 07-0511 (Tex. Nov. 2, 2007)(O'Neill) (termination of parental rights, CPS, DFPS suits) (conservatorship to DFPS not appealed)

In re Moore, No. 06-0544 (Tex. Aug. 31, 2007)(per curiam)
(SAPCR, nonparents, sanctions, child custody dispute between parent and nonparent)

Holmes v. Kent, No. 04-0729 (Tex. Apr. 20, 2007)(per curiam)
(TRS benefits dispute, change in beneficiary designation)

In the Estate of Marvin Nash, No. 05-0538 (Tex. Apr. 20, 2007)(Jefferson)(effect of divorce on will)

In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam)(contractual alimony not enforceable by contempt, habeas granted)

In Re Ricky Derzapf, No. 06-0669 (Tex. Mar. 23, 2007)(per curiam)(family law, SAPCR, grandparent suit, parent prevails over grandparent in dispute over access to grandchildren, mandamus granted)

Zipp v. Alisa Wuemling, No. 05-0731 (Tex. Mar. 9, 2007)(per curiam) (family law, guardianship, mootness issue)

2007-12-03T22:46:00.000-08:00

Mexican divorce decree, foreign judgment, In the Intereest of C.S. and C.S., Children
(Tex.App.- San Antonio, Nov. 28, 2007)(Opinion by Justice Simmons)(enforcement of foreign divorce judgment) (Before Justices Stone, Angelini and Simmons)
Disposition: AFFIRMED IN PART/REVERSED & REMANDED IN PART:
Trial Court No. 2005-CVG-001601-D4
Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Rebecca Simmons, Justice

Delivered and Filed: November 28, 2007

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This appeal arises as a result of the registration of a foreign divorce decree and a motion to enforce child support filed by Appellee Maria De Lourdes Benavides (“Benavides”). The trial court rendered a judgment in favor of Benavides and awarded sums for child support arrearages, prejudgment interest, and attorney’s fees. In five issues, Appellant Juan Carlos Sanchez (“Sanchez”) claims that the trial court erred in (1) modifying the foreign divorce decree by establishing a monthly child support amount in U.S. Dollars; (2) finding that the total arrearage in child support was $62,000.00 when there was insufficient evidence; (3) enforcing the miscellaneous costs provision of the decree by a judgment for contempt; (4) assessing the tutoring classes as an expense in addition to the monthly child support amount; and (5) hearing the lawsuit when it lacked subject matter jurisdiction. Because the trial court erred in determining that the tutoring costs were not part of the monthly child support amount, we reverse in part and remand this cause to the trial court for further proceedings consistent with this opinion. We overrule Sanchez’s remaining issues and, in all other respects, affirm the judgment of the trial court.

Background

On October 16, 1998, Sanchez and Benavides were divorced in Nuevo Leon, Mexico. Under the divorce decree (“Foreign Decree”), Sanchez was required to pay monthly child support in the amount of $15,700.00 Mexican Pesos or its equivalent in U.S. Dollars as well as additional amounts for expenses such as vacation trips, schooling materials, and medical expenses.
Benavides alleges that, after December of 2002, and for a period of 19 months, Sanchez failed to pay the child support and additional costs as required under the Foreign Decree. In an effort to resolve the alleged arrearage, Sanchez and Benavides entered into a written agreement on November 23, 2004. Sanchez agreed to transfer his interest and equity in a home in Webb County to Benavides and title to a 1999 Mercedes automobile. In return, Benavides would release the alleged delinquency of $62,000.00 dollars.
Thereafter, Sanchez allegedly failed to pay the child support and additional costs accruing after the settlement agreement. On November 4, 2005, Benavides registered the Foreign Decree and filed a motion to enforce child support. Following a bench trial, on December 14, 2005, the trial court rendered judgment for Benavides in the amount of $69,926.79, finding that the written agreement, dated November 23, 2004, failed for lack of consideration. The court also awarded prejudgment interest of $7,965.00, and attorney’s fees of $5,000.00. This appeal ensued.
Trial Court’s Authority to Modify Decree

In his first issue on appeal, Sanchez asserts that the trial court erred in modifying the Foreign Decree. Sanchez complains that:
by ordering him to pay an arrearage amount based on $1,800.00, an amount which may be in excess of or less than what the issuing Court ordered[,] is tantamount to a modification of the Mexican decree . . . contrary to Section(s) 159.205 and 159.604 of the Texas Family Code.

Benavides claims that Sanchez failed to object to the trial court’s conversion of the $15,700.00 pesos per month figure to $1,800.00 dollars and thus has not preserved error on this issue. We agree.
Initially, Sanchez questioned the trial court’s authority to establish an exchange rate on a foreign divorce decree. In response to Sanchez’s argument, the trial court suggested that it would make a finding that the arrearages were based on a monthly amount of $1,800.00 dollars instead of a change to the decree. Sanchez stated “That’s fine.” Thus, with respect to the trial court’s authority to establish an exchange rate on a foreign decree or make any modification, Sanchez has failed to show that he preserved such error. Tex. R. App. P. 33.1. To the extent that Sanchez is asserting that there is factually insufficient evidence to support the trial court’s finding, we disagree with Sanchez as discussed below. We overrule Sanchez’s issue number one.
Total Child Support Arrearage

We next address issues two and four considering both revolve around the child support arrearage amount. We begin with issue number four.
In his fourth issue, Sanchez asserts that the trial court erred in assessing the costs for tutoring classes as an expense in addition to child support. Sanchez argues that the decree specifically included costs of tutoring as part of child support and therefore, the expense of $4,000.00 for tutoring should not be in addition to child support. We interpret Sanchez’s argument to mean that the trial court erred as a matter of law when it concluded that the $4,000.00 in tutoring expenses were in addition to the monthly child support amount of $1,800.00. In support of his argument, Sanchez directs us to the Foreign Decree.
Benavides testified that there were 19 months of child support in arrears at $1,800.00 per month. Further, she testified that the remaining balance of $26,900.00 was due to a number of miscellaneous expenses including the $4,000.00 in tutoring expense that she claimed was in addition to the monthly child support amount of $1,800.00.
Clause Two of the Foreign Decree provides:
Juan Carlos Sanchez Hernandez states that in relation to the Child Support which will be under his responsibility, and for reason (Page 3 Original Document) of complying with the law, he promises to pay as Child Support for his minor children Carlos Andres and Carolina Sanchez Galvan, as well as in favor of Maria de Lourdes Galvan Garza, the amount of $15,700.00 (Fifteen Thousand Seven Hundred Mexican Pesos) or it[s] equivalent in U.S. Dollars; the child support which is previously referred to includes among other things the following: payment of utilities . . . private tutors to compliment the education of the minor children . . . .

(emphasis added)

Despite Clause Two, Benavides contends that the decree also contemplated additional educational expenses, which could include tutoring expenses. Clause Five of the decree states:
apart from the money payments established previously in the preceding clauses which he promises to make relative to Child Support payment pertaining to his minor children and payment made to [Benavides], he also promises and assumes the legal obligation of any necessary expense which is related to . . . education, . . . schooling materials and any other expenses which is related to the education of the referred to minor children . . . .

Clauses Two and Five are our focus in determining whether the tutoring expense is part of the child support as defined in Clause Two or as additional child support as defined in Clause Five.
As a general rule of construction, the specific language of an instrument controls over its general terms. O’Connor v. O’Connor, 694 S.W.2d 152, 155 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.). Clause Two specifically included the payment of private tutoring as part of the monthly child support of $15,700.00 Mexican Pesos or its equivalent in U.S. Dollars. In comparison, Clause Five included the payment for any necessary expenses which related to education. Because Clause Two specifically included the cost of private tutoring, we must conclude that it controlled over Clause Five. As a result, the trial court erred as a matter of law in concluding that the tutoring expense was in addition to the monthly child support amount of $1,800.00 and an additional $4,000.00 was owed in child support. We sustain Sanchez’s issue number four.
In issue number two, Sanchez states that there was insufficient evidence to support the finding of $62,000 as child support arrearage. “A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency of the evidence.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Having sustained issue number four, we review the factual sufficiency of the evidence as to the remaining balance of the expenses.
A review of the factual sufficiency of the evidence requires this court to consider, weigh, and examine all of the evidence in the record. Id. An appellate court may set aside the finding only if the evidence that supports the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Id.
The parties appear to agree that child support was past due for a period of 19 months. Benavides testified that there was a total of $35,100.00 past due in child support. Benavides further stated that Sanchez and she understood that $1,800.00 was the monthly amount due as evidenced by past deposits. The previous agreement, which was notarized and signed by Sanchez and Benavides, states the monthly amount of child support based on the Foreign Decree, is $1,800.00 dollars. Although the trial court found this agreement unenforceable for lack of consideration, this is some evidence to support the trial court’s finding that the monthly amount of the child support under the Foreign Decree was $1,800.00. As to the remaining balance, Benavides presented testimony, credit card statements, bank processed checks, and receipts to substantiate the additional costs as contemplated in the decree.
We are unable to conclude that the court’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. As a result, there is factually sufficient evidence to support the trial court’s finding that the child support arrearage was based on a monthly amount of $1,800.00 and the finding of the additional expenses making up the remaining balance other than the tutoring expense. We overrule Sanchez’s issue number two.
Enforcement by Contempt
In his third issue, Sanchez states “miscellaneous costs awarded, specifically clauses five and six ‘promised’ under the foreign decree, are not enforceable through a contempt action.” According to Sanchez, these clauses are too vague and ambiguous to be enforceable by contempt. Notably, the trial court did not enter an order of contempt and there is no objection or motion raising this argument before the trial court. Thus, Sanchez has failed to preserve this alleged error. Alternatively, even if Sanchez had preserved error, Sanchez has failed to show that Clauses Five and Six in the Foreign Decree were unenforceable.
We agree with Sanchez that “[t]o be enforceable by contempt, a decree must ‘set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed by him.’” Ex Parte Acker, 949 S.W.2d 314, 317 (Tex. 1997) (internal citations omitted). However, based on Benavides’s motion to enforce child support, the trial court rendered a judgment for child support arrearage.
A party seeking enforcement of a child support order “is not required to plead that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies.” Tex. Fam. Code Ann. § 157.002(d) (Vernon 2002). A child support order may be enforced through the rendition of a money judgment if it is sufficiently definite and certain. Villanueva v. Office of Attorney General, 935 S.W.2d 953, 955-56 (Tex. App.—San Antonio 1996, writ denied). An order that is unenforceable by contempt may be enforced by entering an arrearage judgment. Id.; see also Davis v. Mangan, No. 14-04-00650-CV, 2005 WL 1692048 *7 n.2 (Tex. App.—Houston [14th Dist.] July 21, 2005, no pet.) (“The judgment from which Davis appeals is not a judgment for contempt, and, thus, the terms of the underlying order are not subject to the heightened scrutiny required for orders of contempt.”).
Here, the trial court entered an arrearage judgment not a judgment for contempt. Sanchez does not contend that the “miscellaneous costs” provisions in the Foreign Decree are indefinite or uncertain to be unenforceable by a money judgment. Quite the contrary, in closing arguments, Sanchez’s counsel stated “[s]o I go back to the decree, you know. It’s very specific, and she agreed it was very specific.” Sanchez’s counsel further stated:
[he] does not have any problems in paying what he’s obligated under, under the decree; the miscellaneous expenses, which are the medical expenses, medical insurance, clothing, shoe wear, education, vacation trips, medication . . . . Obviously, he has no problem. He testified to that, you know . . . .

Sanchez has failed to show why the foreign decree, and in particular Clauses Five and Six, are unenforceable by a money judgment. We overrule Sanchez’s third issue.

Trial Court Lacked Subject Matter Jurisdiction
In his last issue, and raised only on appeal, Sanchez claims the trial court lacked subject-matter jurisdiction because Mexico or a foreign country does not fit the definition of a “state” under Chapter 159 of the Texas Family Code. More specifically, Sanchez argues that the trial court could not enforce the Foreign Decree issued by the tribunal in the State of Nuevo Leon, Mexico because neither Nuevo Leon nor Mexico is a state as defined in Section 159.102.
Section 159.603 of the Texas Family Code states “a registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Tex. Fam. Code Ann. § 159.603 (Vernon 2002). In relevant part, Section 159.102 defines states as a foreign country or political subdivision that: (1) has been declared to be a foreign reciprocating country or political subdivision under federal law; (2) has established a reciprocal arrangement for child support with this state as provided by Section 159.308; or (3) has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under Chapter 159. Tex. Fam. Code Ann. § 159.102 (21)(B)(i)-(iii) (Vernon 2002).
Benavides directs us to the “Child Support Memorandum and Collaboration Arrangement Between Nuevo Leon, Mexico and The State of Texas, U.S.A.” This agreement was entered into “in order to establish mechanisms to allow reciprocal enforcement of child support obligation between both states.” The agreement was signed by the Governor and the Attorney General of the State of Texas and Nuevo Leon. Thus, Benavides has presented evidence to establish that there is a reciprocal arrangement for child support between Nuevo Leon, Mexico and the State of Texas as provided by Section 159.308. See In the Interest of V.L.C., 225 S.W.3d 221, 228 (Tex. App.—El Paso 2006, no pet.) (stating Section 159.308 “provides that Texas may enter into a reciprocal arrangement to recognize a foreign country or political subdivision in the absence of a federal reciprocal declaration”). We overrule Sanchez’s last issue.
Conclusion

We sustain Sanchez’s issue number four and reverse the trial court’s judgment in part and remand the case to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

No Docketing Statement Filed - Appeal in Child Custody Case Dismissed

2007-11-25T22:34:00.000-08:00

One Justice dissents from dismissal, cautioning that death penalty sanctions should not imposted lightly. It was not clear whether the party or her attorney was at fault.

Holik v. Holik and in the Interest of A.F.H., a Child, No. (Tex.App.- Waco, Nov. 15, 2007)(Opinion by Chief Justice Gray, dissenting note by Justice Vance) (Before Chief Justice Gray, Justices Vance and Reyna)
In the Matter of the Marriage of Jackie Holik and Melissa Holik and in the Interest of A.F.H., a Child--Appeal from County Court at Law of Walker County

MEMORANDUM Opinion

Melissa Holik appeals from an adverse judgment rendered in a divorce and child custody case. She has not filed a docketing statement. See Tex. R. App. P. 32.

In a letter dated September 10, 2007, the Clerk of this Court notified Melissa that the docketing statement must be filed within 21 days from the date of the letter. No docketing statement was filed. In another letter dated October 10, 2007, the Clerk warned Melissa that if the docketing statement was not filed within 21 days from the date of the letter, the appeal would be dismissed without further notification. See Tex. R. App. P. 42.3(b), (c) and 44.3.

More than 21 days have passed and we have not received the docketing statement. Accordingly, this appeal is dismissed.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance dissents with a note)*
Appeal dismissed
Opinion delivered and filed November 14, 2007

* “(The clerk’s record contains a motion for new trial supported by Appellant’s affidavit, which shows that this appeal has arguable merit. Our records affirmatively show that the Appellant has no knowledge of any action we have taken since the filing of this appeal; all correspondence has been to her attorney. Yet, we have made no effort to determine whether the failure to file a docketing statement is due to the attorney or the Appellant. Because dismissal as a sanction is, in effect, a “death penalty,” which precludes consideration of the merits of the Appellant’s claim, a direct relationship must exist between the offensive conduct and the sanction imposed. See Olivarez v. State, 183 S.W.3d 59, 61 (Tex. App.—Waco 2005, no pet.) (Vance, J. concurring). Furthermore, we should consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id.)”

Error in Disposition of Military Retirement Benefits Requires Reversal of Property Division and Child Support

2007-11-25T22:12:00.000-08:00

Waco Court of Appeals reverses disposition of military retirment benefits in divorce; also reverses child support because it was affected by the error in division of property. Chief Justice would have affirmed.

Anderson v. Anderson, No. (Tex.App.- Waco, Nov. 14, 2007)(Opinion by Justice Reyna ) Dissenting Opinion by Chief Justice Gray
(military retirement benefits, estoppel, child support, intentional underemployment)
(Before Chief Justice Gray, Justices Vance and Reyna)
Full style: In the Matter of the Marriage of Sylvester Anderson and Diona Marie Anderson and in the Interest of S.E.A. and B.T.W.A., Children
Appeal from 378th District Court of Ellis County
Disposition: Reversed and Remanded

MEMORANDUM OPINION

Sylvester Anderson appeals from a divorce decree, claiming in two issues that: (1) the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits; and (2) the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment. Appellee Diona Marie Patera presents two cross-issues in which she contends: (1) Sylvester is precluded from attacking the divorce decree because he has remarried; and (2) the parties’ postnuptial agreement is unenforceable under California law. We will reverse and remand.

Acquiescence in Decree

Diona contends in her first cross-issue that Sylvester is estopped to challenge the divorce decree because he acquiesced in the decree by remarrying. She cites Bragdon v. Bragdon, 594 S.W.2d 561 (Tex. Civ. App.—Amarillo 1980, writ ref’d n.r.e.), in support of this proposition. This contention appears to be based on “the well-settled ‘acceptance of benefits’ rule, under which a party who accepts the benefit of a judgment is estopped from challenging the judgment by appeal.” Williams v. LifeCare Hosps. of N. Tex., L.P., 207 S.W.3d 828, 830 (Tex. App.—Fort Worth 2006, no pet.). We reject Diona’s contention for two reasons.

First, Bragdon involved a collateral attack on a prior divorce decree. See Bragdon, 594 S.W.2d at 562-63. The former wife sought to enforce an Alabama divorce decree in Texas, but the former husband argued in a counterclaim that the Alabama decree was void because the Alabama court did not have jurisdiction of the parties. Id. at 562. Sylvester, on the other hand, is challenging the property division aspects of the divorce decree in this case by direct appeal.

Second, under the “acceptance of benefits” rule, an exception applies “when the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment.” Williams, 207 S.W.3d at 830; accord Waite v. Waite, 150 S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Here, a reversal of the divorce decree because of the manner in which the trial court divided the parties’ community estate or awarded child support “cannot possibly affect” the dissolution of the parties’ marriage. See id.

Therefore, we hold that Sylvester is not estopped to challenge the divorce decree on the grounds he has asserted. Diona’s first cross-issue is overruled.

Military Retirement

Sylvester contends in his first issue that the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits.

“Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)); Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (same). An ambiguity does not exist merely because the parties assert conflicting interpretations. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). Rather, an ambiguity exists only if the contract is susceptible to two or more reasonable interpretations. Id.; Roman, 193 S.W.3d at 50.
Here, the parties’ postnuptial agreement contains the following provision regarding their military retirement benefits:
Husband is a Sergeant and the Wife is a Corporal in the U.S. Marine Corps and their active service for purposes of retirement began on December 28, 1977 for the Husband and February 4, 1982 for the Wife. The parties have agreed that they do expressly waive all rights they may have in and to said retirements.

This provision (the “retirement clause”) is labeled as paragraph d of section II of the agreement, which section is entitled “Division of Community Property.”
Because both Sylvester and Diona began active service in the Marines before their marriage, only a percentage of their respective military retirement benefits can be considered community property. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 & n.12 (Tex. App.—Waco 2002, no pet.). Thus, at the time they executed their postnuptial agreement, they each owned community property interests in their own military retirement benefits, community property interests in each other’s benefits, and separate property interests in their own benefits.
Because the retirement clause is located in a section of the agreement entitled “Division of Community Property,” Sylvester and Diona waived one or more of the community property interests they held in these benefits under the language of this clause. See Enter. Leasing, 156 S.W.3d at 549 (ambiguity “must be decided by examining the contract as a whole”); Roman, 193 S.W.3d at 50 (same). Thus, they waived: (1) the community property interests they held in their own benefits; (2) the community property interests they held in each other’s benefits; and/or (3) all community property interests they held in their combined military retirement benefits.
We hold as a matter of law that the only reasonable interpretation of the retirement clause is that Sylvester and Diona each waived the community property interest they held in the other’s military retirement benefits. See D. Wilson Constr., 196 S.W.3d at 781; Roman, 193 S.W.3d at 50. Stated another way, it is unreasonable to believe (under optional interpretation (1) above) that Sylvester and Diona intended to designate the community property interests they held in their own military retirement benefits as each other’s separate property. Cf Tex. Fam. Code Ann. § 4.102 (Vernon 2006) (spouses may partition or exchange community property by agreement). It is likewise unreasonable to believe (under optional interpretation (3) above) that they each agreed to forfeit all community property interests they held in their combined military retirement benefits.
Accordingly, we sustain Sylvester’s first issue.

Enforceability of Postnuptial Agreement

Diona contends in her second cross-issue that the postnuptial agreement is unenforceable because the parties did not comply with section 1615 of the California Family Code when they executed the agreement.
Sylvester and Diona executed this agreement when they were stationed in California. By its own terms, the agreement is governed by California law. Under section 1615, “[a] premarital agreement is not enforceable” against a party who “did not execute the agreement voluntarily.” Cal. Fam. Code § 1615(a)(1) (West 2004). Subsection (c) of this statute then provides that such an agreement “shall be deemed” to have not been executed voluntarily if a party was not “represented by independent legal counsel” at the time of execution, unless expressly waived, or if the party was not given at least seven days to consult with counsel between the time the agreement was first presented to the party and the time it was signed. Id. § 1615(c) (West 2004).
However, section 1615 applies only to premarital agreements. Id. § 1615(a); In re Marriage of Friedman, 100 Cal. App. 4th 65, 122 Cal. Rptr. 2d 412, 417 (Cal. Ct. App. 2002). Sylvester and Diona executed the postnuptial agreement at issue nearly eighteen months after they were married. Accordingly, any failure to satisfy the requirements of section 1615 does not render their agreement unenforceable. See Friedman, 122 Cal. Rptr. 2d at 417. Thus, we overrule Diona’s second cross-issue.

Intentional Underemployment

Sylvester contends in his second issue that the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment.[1]

We review child support orders under an abuse-of-discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re J.C.K., 143 S.W.3d 131, 134 (Tex. App.—Waco 2004, no pet.). We do not conduct an independent review of findings of fact in a child support case under traditional legal and factual sufficiency standards. J.C.K., 143 S.W.3d at 135; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44.
In re J.D.M., 221 S.W.3d 740, 742 (Tex. App.—Waco 2007, no pet.).

Under the Family Code, a child support award is generally based on the net monthly resources of the obligor. Tex. Fam. Code Ann. §§ 154.125-154.126 (Vernon 2002). Section 154.066 permits a trial court to apply the child support guidelines to the “earning potential of the obligor” if the court determines that the obligor is intentionally unemployed or underemployed. Id. § 154.066 (Vernon 2002).

To support a finding of intentional underemployment or unemployment, there must be evidence the obligor reduced his or her income with the intention of decreasing the child support payment. Garner v. Garner, 200 S.W.3d 303, 306-07 (Tex. App.—Dallas 2006, no pet.); In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied). This intent may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background, and earning potential. Id.

Here, it is undisputed that, after taking into account the trial court’s award of fifty percent of Sylvester’s retirement to Diona, Sylvester received a monthly net retirement benefit of $505 and a monthly net disability benefit of $875.[2] See Tex. Fam. Code Ann. § 154.062(b)(5) (Vernon 2002) (obligor’s net resources include “retirement” and “disability” benefits). Sylvester testified that he was employed for a period of time after retirement by Greyhound but had to quit because of physical problems associated with his disability.[3] According to Diona, he earned about $25,000 per year working for Greyhound.

Most of the dispute regarding Sylvester’s income or potential income relates to the cars he owns. Diona testified that Sylvester repairs and resells old cars. She estimated that he sold between thirty and forty cars in 2005 and made about $4,500 net per month doing so. She testified to one occasion in April 2005 when Sylvester showed her a briefcase containing $50,000 in cash which he had acquired from selling cars. According to her, he has cars in three states (Mississippi, Texas, and California) available to sell.

Sylvester disputed much of Diona’s testimony. He denies that he has ever been in the car selling business. He explained that he was keeping an unspecified number of cars which he has listed in his will and hopes to leave for their children. He testified that he has several friends who leave their cars on his property because he has plenty of space. He stated that he had never sold even fifteen cars in a single year. Sylvester estimated that if he did sell cars, he “probably could make $5,000 a year.” He testified that he had sold a few cars in the months preceding the final hearing[4] just to cover his monthly expenses.

In this final hearing, Diona testified that Sylvester has “earning potential” from work and the “car business” but “[h]e’s just choosing not to use it.” She also refers us to a portion of Sylvester’s testimony from which it could be inferred that he decided to stop selling cars after learning that his child support obligation would be based on the income he earned from sales. This testimony was provided when Diona’s counsel was cross-examining Sylvester about when he sold a 1970 Dodge Charger. “When it was [sic] in the process of being sold? 2005. When the court date -- we -- we first -- the decree. And then once I was told that I was going to have to pay $600 for child support and was based on the cars --.“

The trial court ordered Sylvester to pay $450 per month in child support for his two children.[5] We conclude that no abuse of discretion is shown for several reasons.

If the trial court took Sylvester at his word, he could make about $5,000 per year selling cars. This income, when combined with his retirement and disability income would support a monthly child support award of $449.[6] Sylvester also testified that he has several cars which he could sell but is not because he would like to give them to his children when he dies. See Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002) (court may assign reasonable amount of deemed income to obligor’s assets which could be liquidated). Finally, if the court fully accepted Diona’s testimony regarding income Sylvester could realize from selling cars ($4,500 net per month), the testimony would support a monthly child support award of $1,470.[7]

Based on the parties’ circumstances and the testimony regarding whether Sylvester was not selling cars because he wanted to lower his child support obligation, we hold that the court did not abuse its discretion by finding that Sylvester is intentionally underemployed. See Garner, 200 S.W.3d at 307-08; E.A.S., 123 S.W.3d at 570-72. Accordingly, we overrule Sylvester’s second issue.

Conclusion

We have found error in the manner in which the trial court divided Sylvester’s military retirement benefits. These benefits were a primary factor in the court’s calculation of his child support obligation. Therefore, we reverse the judgment and remand this cause for further proceedings consistent with this opinion. See Wilson v. Wilson, 132 S.W.3d 533, 538-39 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (remanding child support determination and property division because child support determination can be “materially influenced” by property division).

FELIPE REYNA
Justice

Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed November 14, 2007
[CV06]

[1] Finding of Fact No. 7 states, “Child support should be set at $450.00 per month beginning November 1, 2005 based on the earnings that Sylvester Anderson has the potential of earning if he were not intentionally underemployed and applying the Supreme Court guidelines.”
[2] The parties offered little documentary evidence to substantiate their testimony regarding their own and each other’s income. In a letter to the trial court, Sylvester’s counsel asked the court to base Sylvester’s child support obligation on these figures, which are consistent with Sylvester’s testimony regarding his monthly benefits. Therefore, we are treating these figures as net income.

[3] Sylvester testified that his disability came from unspecified “neck and pain injuries” which he sustained while lifting weights. He explained that he had been on a Marine Corps weightlifting team and was a five-time world champion.
[4] The court actually conducted four hearings in this matter: (1) an October 31, 2005 “Final Divorce Hearing”; (2) a February 8, 2006 hearing for entry of judgment; (3) a May 9, 2006 hearing on Sylvester’s motion for new trial; and (4) a June 6, 2006 “Final Hearing” in which the parties provided additional testimony regarding child support and visitation. Sylvester provided this particular testimony during the June 6 hearing.
[5] There were actually two divorce decrees in this case. In the first decree, the court ordered Sylvester to pay $600 per month in child support. However, the court granted Sylvester’s motion for new trial in part based on Sylvester’s contention that the child support award had been calculated based on 100% of Sylvester’s military retirement, even though the court had awarded 50% of his retirement to Diona.

[6] $5,000 per year is approximately $417 per month. $875 + $505 + $417 = $1,797. In this scenario, 25% of Sylvester’s actual and potential net monthly income of $1,797 would be $449. See Tex. Fam. Code Ann. § 154.125(b) (Vernon 2002) (child support for two children is 25% of monthly net resources).

[7] $875 + $505 + $4,500 = $5,880 x 0.25 = $1,470

The Perils of Violating Gender Roles: "Mr. Mom" factor considered by Austin Court of Appeals in reviewing equity of divorce property division

2007-11-14T16:26:00.000-08:00

Austin Court of Appeals, in a memorandum opinon authored by Chief Justice Kenneth Law affirms division of marital estate in second appeal involving the same couple; finds no abuse of discretion in light of factors relevant to disproportionate division of marital estate and the evidence before the trial court. Husband-father earned less and had asked for disproportionate division in his favor.

Ronald J. Hewelt v. Virgina M. Hewelt, No. (Tex.App.- Nov. 14, 2007)(Opinion by Chief Justice Law)(property division and allocation of costs of prior appeal)

Excerpts from Chief Justice Ken Law's opinion:

Ronald argues that there is no evidence to support the trial court's finding that the parties have relatively equal earning capacities. (10) The evidence presented shows that, at various times throughout these trials and appeals, both Ronald and Virginia have been unemployed. When they were employed, Virginia's salary ranged from $120,000 per year to $162,000 per year. Ronald's salary was $84,000. Virginia has earned both bachelor and master degrees while Ronald has earned a technical degree. While, taken together, the evidence shows that Ronald never earned as much as Virginia during the marriage, it is not conclusive as to their relative earning capacities.

The trial court could have determined that both parties had the ability to earn substantial incomes, whether that income was $84,000 or $120,000 or even $162,000.

In addition, Ronald was a self-proclaimed "Mr. Mom" and may, therefore, have opted for a lower-paying, less-time consuming job during the marriage.

In addition, the security of both parties' jobs was subject to market fluctuations, and both Ronald and Virginia had been laid off at least once due to market conditions. Finally, even if the parties' earning capacities are not comparable, earning capacity is only one of the factors on which the trial court based its division, and the court could have found that other factors weighed more heavily in arriving at a just and right division.The trial court's role is to weigh the evidence, determine credibility, and divide the estate based on the court's findings. See Murff, 615 S.W.2d at 700. Having reviewed the evidence, indulging every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing community assets, we cannot say that the trial court abused its discretion in dividing the community property equally between the parties. See id. at 699. Ronald has failed to demonstrate that the trial court's substantially equal division of the property was manifestly unfair. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). Accordingly, we conclude that the trial court's division of the marital estate was a proper exercise of its discretion.

Mexican divorce terminates Texas suit and appeal

2007-11-11T21:16:00.000-08:00

Marta Araceli Rodriguez v. Carlos Federico Aviles, No. (Tex.App.- San Antonio, Oct. 24, 2007)(Opinion by Chief Justice López)(foreign divorce)
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 24, 2007
DISMISSED AS MOOT

Marta Araceli Rodriguez appeals the trial court's order dismissing her divorce petition. Carlos Federico Aviles filed a motion to dismiss this appeal for want of jurisdiction. The basis for the motion was the entry of a final divorce decree by a Mexican court. Under the facts presented, the entry of the divorce decree by the Mexican court renders this appeal moot; therefore, we dismiss the appeal.

Background

On August 19, 2005, Marta filed a petition of separation in Mexico, declaring that Mexico had been her domicile for the past seventeen years and stating her intention to file a divorce petition in Mexico. Instead, on September 1, 2005, Marta filed a divorce petition in Texas. On September 13, 2005, the Mexican court ordered Carlos to pay Marta alimony for her support. On September 22, 2005, the Mexican court accepted a dismissal filed by Marta; however, Carlos appealed the dismissal, and the separation proceeding was subsequently combined and handled by the same court handling the divorce petition filed by Carlos on September 28, 2005. On the same day Carlos filed the divorce petition, the Mexican court entered orders granting Carlos temporary custody of the minor children. On September 29, 2005, the parties entered into a Rule 11 agreement in the Texas proceeding in which they agreed that the minor children would reside with Marta. The Rule 11 agreement stated that Carlos was not consenting to the jurisdiction of the Texas courts.

In December of 2005, Carlos filed a Special Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and Original Answer in the Texas suit. In December of 2006, the trial court dismissed the Texas suit after a hearing. Marta appealed the dismissal order.
On April 13, 2007, during the pendency of the appeal, the Mexican court entered a final divorce decree declaring the parties divorced and stating:

SEVENTH.- Regarding the right of Parental Authority over the minors RODRIGO and MARTHA CECILIA AVILÉS RODRIGUEZ, both parties will keep it, and regarding their care and custody, according to article 552 fraction II, section c) of the Civil Code of Coahuila, once the minors appear before the Court and state who of their parents they want to live with, in consequence a decision shall be made, and their maintenance shall be declared as well. (1)

Discussion

The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Collier v. Grant, No. 04-05-00813-CV, 2006 WL 1004822, at *2 (Tex. App.--San Antonio Apr. 19, 2006, no pet.). In this case, Marta willingly participated in the Mexican divorce proceeding resulting in the rendition of a final divorce decree. Because the Mexican court resolved the controversy between the parties by entering a final divorce decree, this appeal is moot. Id.; see also Hunt v. Hunt, 453 S.W.2d 377, 378-79 (Tex. App.--Houston [14th Dist.] 1970, no pet.) (affirming dismissal of divorce case in Texas based on rendition of divorce decree by Mexican court).

Even if the appeal was not moot, we would affirm the dismissal order because the trial court did not abuse its discretion in dismissing the divorce petition based on inconvenient forum. See Dickerson v. Doyle, 170 S.W.3d 713, 718 (Tex. App.--El Paso 2005, no pet.) (noting abuse of discretion standard applies); see also Tex. Fam. Code Ann. § 152.207 (Vernon 2002) (listing factors trial court may consider in dismissing based on inconvenient forum).

Although Marta filed domestic violence charges against Carlos, the civil charges in Texas were dismissed, the criminal charges in Texas were expunged, and the Mexican court found the charges were unfounded. Carlos, Marta, and the children are Mexican citizens, and the parties contracted to be married under the separate property regime in Mexico. The parties frequently traveled between their house in Mexico and their house in Texas during their marriage using E-1 business visas that expire in 2009. Marta initially invoked the jurisdiction of the Mexican court when she filed the petition of separation, declaring that Mexico had been her domicile for seventeen years.

Under Mexican law, a domicile cannot be changed unless the parties agree. The separation proceeding was being handled by the same court handling Carlos's divorce petition. Marta participated in the Mexican proceeding without filing the equivalent of a special appearance. The Mexican court entered an order regarding the temporary custody of the children, and the Mexican government sent a letter rogatory or letter of request to the Bexar County District Courts requesting assistance in enforcing the Mexican court order. Finally, Marta's testimony at the hearing regarding her involvement in the various proceedings was contradictory. Given the evidence before the trial court, the trial court did not abuse its discretion in dismissing the underlying proceeding on the basis that Texas was an inconvenient forum.

Conclusion

Because the entry of the divorce decree by the Mexican court renders this appeal moot, the appeal is dismissed.

Alma L. López, Chief Justice

1. This is a direct quote from the translated version of the final divorce decree entered by the Mexican court.

Nonparent Custody Affirmed

2007-11-11T20:53:00.000-08:00

San Antonio court of appeals affirms award of custody to nonparent over natural father. Mother had died. Challenge to standing fails. Parental preference rebutted.

In the Interest of N.B.B. and J.B.B., Children, No. (Tex.App.- San Antonio , Oct. 31, 2007)(Opinion by Justice Angelini)(nonparents)(Before Chief Justice López, Justices Angelini and Marion)
Appeal from 81st District Court of Atascosa County
Opinion by: Karen Angelini, Justice
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 31, 2007
AFFIRMED

This an appeal from an order in a suit affecting the parent-child relationship. At the close of the non-jury trial, the trial court entered an order appointing Shannon W. and John B. joint managing conservators of the children, N.B.B. and J.B.B., with Shannon having the right to determine the primary residence of the children and John having standard visitation. In three issues on appeal, John contends Shannon, a non-parent, lacked standing to participate in this suit; the evidence was legally and factually insufficient to support certain findings of fact and conclusions of law; and the evidence was legally and factually insufficient to rebut the parental presumption set forth in section 153.131 of the Texas Family Code. We affirm the trial court's order.

Factual and Procedural Background

John and Sharon B., the mother of N.B.B. and J.B.B., began living together in the early 1990s in Florida. Although they never married, they had two children, N.B.B. and J.B.B. Sharon and John eventually separated, and sometime between 2000 and 2002 Sharon moved to Texas with the children.

In early 2005, Sharon was diagnosed with terminal cancer. About a month before her death, Sharon placed J.B.B., who has Downs Syndrome, in a residential facility called The Willows. At the same time, Sharon's daughter, N.B.B., began living with Sharon's friend and neighbor, Shannon W.

Sharon died on September 22, 2005. When John learned that Sharon had passed away, he tried to take his children with him to Florida, but Shannon refused to allow him to do so. John filed an original petition in a suit affecting the parent-child relationship. Shannon then brought a counter-petition. After a temporary orders hearing, the trial judge essentially maintained the status quo, appointing Shannon as temporary managing conservator of the children and John as temporary possessory conservator of the children. Upon a final hearing, the trial judge appointed Shannon and John as joint managing conservators, granting Shannon the right to determine the children's residence and John standard visitation. The trial court then entered findings of fact and conclusions of law. John appeals the trial court's order.

The Evidence

The evidence in this case was adduced at two hearings: the temporary orders hearing held on October 18, 2005, and the trial on the merits held on April 27, 2006.
John, the father of N.B.B. and J.B.B., testified that he and Sharon began dating in 1993 in Florida. When they found out she was pregnant, they began living together. According to John, he lived with Sharon until about 2001 or 2002, when they separated. Sharon then took the children and moved to Texas, but she and John continued to be good friends. In 2003, Sharon took the children to Florida to visit John's family. In 2004, N.B.B. visited the family in Florida by herself.
The first time John came to Texas was in May 2005,when Sharon was seriously ill. Then, in the months of June and July 2005, N.B.B. and J.B.B. visited John in Florida. According to John, while the children were with him, his girlfriend, Sandra, helped him take care of the children while he was working. In late July 2005, the children returned to Texas.
John testified that in August 2005 he received a phone call from Sharon's doctor, Dr. Mario Perez, asking him to help Sharon with J.B.B. John then spoke to Sharon who told him that because of her illness, J.B.B. was too hard for her to handle. John however refused to take J.B.B. According to John, he did so because he and Sharon had always agreed not to separate the children. When he found out Sharon had passed away, he called Shannon and asked if he could come get his children. She refused.
John testified that he has a house in Florida for his children to live in with him. He also has a large extended family living near him. Although he is aware that J.B.B. has been placed in a residential care facility, he does not plan to place J.B.B. in one in Florida. J.B.B. needs special attention because he uses diapers and does not know how to clean himself after he goes to the bathroom. It is John's intent for both children to live with him. He plans to place both N.B.B. and J.B.B. in school, with J.B.B. attending a special Olympics program after school. According to John, he will get professional help for J.B.B. if necessary. And, according to John, he does not plan for N.B.B. to be J.B.B.'s caretaker. His girlfriend, Sandra, will help him with the children. John testified that he has never hit N.B.B. or J.B.B.
John has a total of six children by four different mothers. The children, other than N.B.B. and J.B.B., are ages three, thirteen, seventeen, and nineteen. The mothers of the two youngest children have filed suit against him to collect child support. He has been ordered to pay child support, but is behind on his payments. He was never ordered to pay child support for N.B.B. and J.B.B. but did send some money to Sharon for their support. In 1991, John was convicted of driving under the influence and eventually had his license revoked for driving with a suspended license. John works at a family-owned construction company and is paid $500 a week; however, child support for his two youngest children is deducted from that amount.
Mauro B., John's brother, testified that in early June 2005, Sharon wrote a letter appointing him as guardian of her children. Mauro believes she did this because he and his children had been very close to N.B.B. and J.B.B. After Sharon moved to Texas, Mauro sent her some money on a couple of occasions. According to Mauro, his brother, John, is a very loving father. But, Mauro admitted the children have not lived with John since 2002 or 2003 when Sharon left Florida. Mauro also testified that John worked for him in the past and was a stable employee. Mauro has never seen John hit either N.B.B. or J.B.B.
Michael B., also John's brother, testified that he owns his own business in Florida, and John is his employee. According to Michael, John is a good employee and makes about $2,000 a month. When N.B.B. and J.B.B. lived in Florida, they spent time playing with Michael's three children. He has never seen John discipline N.B.B. or J.B.B.
John's father also testified. John's father is retired and lives in Florida with his wife. According to him, his son John is a very good father, and if John gains custody of N.B.B. and J.B.B., he and his wife will help take care of them. He has never seen John hit any of his children. John's girlfriend, Sandra, loves the children and treats them very well. John's father further testified that Sharon moved to Texas around 1999 to 2000.
Dr. Mario Perez was Sharon's treating doctor. According to Dr. Perez, Sharon was diagnosed with terminal cancer around March 2005. Around August 2005, Dr. Perez had a telephone conversation with John concerning Sharon's condition. Because J.B.B. was becoming difficult to handle, Dr. Perez was trying to explore ways to make this difficult time with J.B.B. a little easier. According to Dr. Perez, although John obviously understood what Dr. Perez was trying to tell him, he gave no feedback one way or the other.
Charlotte Taber is the licensed counselor ordered by the court to conduct a social study in this case. She testified that she visited both Shannon's home and John's home. She also observed John with his children in her office and in the park. According to Taber, John interacted well with the children; they seemed very natural. She also observed John's nephews interact with him in Florida. According to Taber, they jumped in his arms and clung to him. She also testified that in his home John has numerous pictures of his nephews and pictures of J.B.B. and N.B.B. John's house is clean, but is in the process of being reconstructed. There is a bedroom for each of the children. John seems to really want to be a father in every way. He has a strong extended family. Taber believes John will be able to nurture his son, J.B.B.
Taber also testified that the staff at The Willows reported to her that J.B.B.'s symptoms have "deteriorated" quite a bit since he has been there; Taber later admitted, however, that when describing J.B.B.'s condition the staff had not used the word "deteriorated." According to Taber, the optimal placement for J.B.B. is in a residential home. Although neither John nor his girlfriend has received training for taking care of J.B.B., Taber testified that John's plan was for his girlfriend to care for J.B.B. when he was not there and to receive help from other family members. Taber testified that John has been unable to fulfill his child support responsibilities with his children; that he has not seen N.B.B. or J.B.B. much in the past four or five years; and that he has not provided child support.
Taber also testified that the children have known Shannon for four years. However, according to Taber, the biological father carries more weight than someone who is not related. Taber also viewed a video of Sharon, N.B.B. and J.B.B.'s mother, in which Sharon indicated she wanted Shannon to take care of her children. According to Taber, N.B.B. also indicated she wanted to live with Shannon. However, when Taber asked N.B.B. what would happen if the judge said she had to live with her father, N.B.B. responded that she would be fine.
Shannon testified that after Sharon moved to her neighborhood in July 2002, they became very good friends. According to Shannon, during the period of time that they were friends, Sharon became like a second mom to her. Shannon saw Sharon and her two children every day. At least once or twice a month, Shannon took care of the children. They shared holiday events, including Christmas and Thanksgiving dinners. During Sharon's illness, several family members and friends, including Shannon, took care of Sharon and her children. On September 1, 2005, hospice began caring for Sharon, and N.B.B. went to live with Shannon. At the same time, Sharon placed J.B.B. at The Willows. Shannon testified that J.B.B.'s condition has improved considerably since he moved to The Willows. His weight has decreased to a healthy weight, and his vocabulary and writing skills have increased. He seems content, happy, and well-behaved. Shannon testified that she visits J.B.B. about twice a month and that she has taken him home with her on weekends. According to Shannon, his relationship with N.B.B. has improved. Shannon does not believe that an average family would be able to take care of J.B.B. because he needs 24/7 supervision. And, although she would like to have J.B.B. stay with her in her home, Shannon realizes she is not trained to deal with J.B.B.'s needs. N.B.B. has told Shannon that, although she misses her brother, she does not miss having to take care of J.B.B., cleaning him up when he soils himself, or fixing him food and drink. According to Shannon, N.B.B. is now enjoying being a little girl. Shannon testified that N.B.B. is doing very well in school and is getting involved in things she was never involved with before. She is in an anti-drug organization at school; she competed in a UIL reading competition; she is playing league softball; and she is considering being a cheerleader. N.B.B. was not able to experience these things when her mother was alive because of J.B.B. Because J.B.B. needed 24/7 care, Sharon could not easily leave the house. J.B.B. had mood swings, and sometimes Sharon had difficulty handling his temper tantrums. If they went to a restaurant, J.B.B. would throw himself down on the floor. He had aggressive spurts quite often when he did not get what he wanted. N.B.B. had to do a lot for her brother because Sharon was tired, especially toward the end of her life. As a result, N.B.B. had a lot of resentment against J.B.B. According to Shannon, shortly before she died, Sharon made a will in which she named Shannon guardian of the children.
Shannon testified that she wants custody of the children. According to Shannon, it was Sharon's wish that she have them, and John has not had enough contact with them to be able to care for them, especially J.B.B. Shannon is district operations manager of twelve auto parts stores in San Antonio and earns about $40,000 a year.
Shannon testified that when N.B.B. and J.B.B. returned from their visit with John at the end of July 2005, N.B.B. was very angry and had a sour attitude. N.B.B. said that although she had a wonderful time in Florida, she had to "clean up" J.B.B. and had to share a room with him.
Ophelia Stephens, a Qualified Mental Retardation Professional, is a caseworker at The Willows where J.B.B. is in residential treatment. In his initial evaluation, it was noted that J.B.B. had a history of being stubborn and noncompliant. After being admitted, he had episodes of physical aggression, self-interest behaviors, temper tantrums, and noncompliance. He also left his bedroom by going out of a window. And, there has been an increase in his hitting and temper tantrum behaviors. Thus, he has been prescribed Zoloft. However, J.B.B. has improved in his ability to communicate. He is working on toileting skills, and his hygiene has improved. According to Stephens, the ideal situation for a child like J.B.B. is to be out of a large facility and placed at home with his family, a foster home, or a group home. However, his caregivers would need to be trained to handle his behavior. Child care, crisis intervention, and counseling would be needed.
Leslie Brown, a counselor at Poteet Independent School District, testified that she has counseled N.B.B. They started talking when Sharon became ill and talked some after Sharon passed away. N.B.B. has expressed anxiety over where she is going to live. She is doing well where she is and would like to stay there. She is well adjusted and has good grades and attendance at school. According to Brown, Shannon has been very supportive of N.B.B. in school.
The trial judge interviewed N.B.B. in chambers on the record. N.B.B. had written some items on a piece of paper that she presented to the judge. N.B.B. told the judge she would like to stay and live with Shannon. She said she loves her father, but he has a bad temper. According to N.B.B., he raises his voice, and she remembers that when she was little he would throw things. N.B.B. stated that he sometimes hit her mother. And, according to N.B.B., this summer her father hit her brother on the leg when he messed in his pants because of his disability. N.B.B. does not feel like she can connect with her father. She is afraid he will hit her the way he used to her hit her mom. She is afraid of him. According to N.B.B., when she was a little girl, her father hit her with his hand and busted her lip. N.B.B. further stated that her brother is doing well at The Willows, and she is doing well in school.
N.B.B. likes her father's girlfriend, Sandra. Sandra is good with J.B.B. However, according to N.B.B. when she and her brother visited her father in Florida, N.B.B. sometimes had to help Sandra with J.B.B.
Standard of Review
In family law cases such as this, we review the trial court's rulings under an abuse of discretion standard. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.--San Antonio 2007, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id. Under an abuse of discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error; rather, they are simply factors in assessing whether the trial court abused its discretion. Id. When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Id. In determining whether the trial court had sufficient information, we use the traditional standard of review for legal and factual sufficiency. Id.
Discussion
In his first issue on appeal, John argues that Shannon, a non-relative, has no standing under section 102.003 of the Texas Family Code to participate in this suit affecting the parent-child relationship. It is apparent, however, that the trial court found that Shannon had standing under a different section of the Texas Family Code: section 102.004(b). That section provides that
the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added). Thus, in order for Shannon to have standing as an "other person" under this section, there must be evidence that (1) she had substantial past contact with the children; and (2) appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. See id.
The evidence shows that Shannon indeed had substantial past contact with both N.B.B. and J.B.B. for a period of about four years before Sharon's death and before John filed suit. Shannon testified that she was good friends with Sharon while they were neighbors, that Sharon had become like a second mom to her, and that she saw the children every day. Shannon often took care of the children and spent holidays with the children and Sharon. Thus, there was legally and factually sufficient evidence that Shannon had substantial past contact with the children.
Furthermore, the evidence was legally and factually sufficient to support the trial court's finding that appointing John sole managing conservator would significantly impair the children's physical health or emotional development. Our discussion of this issue is applicable not only to John's first issue on appeal, which challenges Shannon's standing, but also to John's third issue on appeal in which he argues that the evidence was legally and factually insufficient to rebut the parental presumption required by section 153.131 of the Texas Family Code. The parental presumption section provides that
unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002). Thus, both John's standing issue and his parental presumption issue depend upon whether there was sufficient evidence to support a finding that appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Further, in John's second issue on appeal, he challenges some, but not all, of the trial court's findings of fact and conclusions of law. The trial court's findings and conclusions relate, for the most part, to this same issue of whether the appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Therefore, we will combine our discussion of all three of John's issues on appeal.
John argues that there is no evidence that he was abusive to his children or would likely cause physical and/or emotional harm to his children in the future. The evidence shows otherwise. After John and Sharon separated and Sharon moved to Texas, John never visited the children in Texas until May 2005 when Sharon was very ill. He saw J.B.B. on only two other occasions and N.B.B. on three other occasions when they came to Florida to visit him. Because J.B.B. needs constant care, while John went to work, his girlfriend and N.B.B. cared for J.B.B. Several weeks before Sharon died, Sharon and her doctor asked John to take J.B.B. to Florida, but he refused because he did not want to separate the children. This resulted in Sharon having to place J.B.B. in a residential treatment center, The Willows, because he was too hard for her to handle as her illness worsened. N.B.B. had to go live with Shannon.
John's plans for the children include having them come to Florida to live with him and enlisting the help of his family and girlfriend. He plans to place both children in public school and J.B.B. in a special Olympics program after school. Although it is necessary for J.B.B.'s caretaker to have special training, John has not received that training.
In addition to N.B.B. and J.B.B., John has four other children, all by different mothers. He did not support his children until the court required him to do so, and he is behind on child support payments. John makes $500 a week working at a family-owned business, but child support for his other children is deducted from that amount.
When N.B.B. and J.B.B. visited John in Florida in the summer of 2005, N.B.B. returned from the visit very angry because she had to take care of J.B.B. while they were in Florida. N.B.B. also had to help her mother take care of J.B.B., especially toward the end of her mother's life, which caused her to resent him. Now that N.B.B. is not having to help care for J.B.B., she is doing very well in school, is participating in activities, and is enjoying being a little girl.
N.B.B. testified that, although she loves her father, he has a bad temper, raises his voice, and throws things. She remembers that he sometimes hit her mother. This past summer, he hit her brother, J.B.B., because J.B.B. soiled his pants. And, according to N.B.B., when she was little, he hit her once on her lip. N.B.B. is afraid of her father and fears that he will hit her the way he used to hit her mom.
Given this evidence, the trial judge could have easily found that appointing John as joint managing conservator with the right to determine place of primary residence would significantly impair both children's physical health or emotional development. John had had little contact with his children since they moved to Texas. He apparently had relied in the past and intended to rely in the future on N.B.B., his girlfriend, and other family members to care for J.B.B. He seemed to have little understanding of J.B.B.'s constant and substantial needs. His past behavior showed an unwillingness to support his other children as well as N.B.B. and J.B.B. And perhaps most compelling, N.B.B. testified to his violent temperament that caused her to be fearful of him. Thus, the trial court did not err in finding that appointment of John as joint managing conservator with the right to determine place of primary residence would significantly impair the children's physical health or emotional development.
We note that John specifically challenges Findings of Fact Nos. 7, 11, 13, 14, 15, 16, 41, and 42, and Conclusions of Law Nos. 3, 5, 6, 7, and 8.
In Finding of Fact No. 7, the trial court found that the children had not lived in the same home as their father since sometime in 2000. Although the testimony is conflicting and somewhat confusing, there is sufficient evidence to support this finding. John's father testified that Sharon and the children moved to Texas around 1999 to 2000. John testified that Sharon and the children moved to Texas sometime in 2001 or 2002.
In Finding of Fact No. 11, the trial court found that Sharon and her doctor asked John to take J.B.B. in the spring of 2005 and John refused. The evidence shows that Sharon's doctor spoke to John to explore ways to make Sharon's difficulty in handling J.B.B. easier. According to the doctor, John understood what the doctor was trying to tell him, but gave no feedback. According to John, he received a phone call from Sharon's doctor who asked him to help Sharon with J.B.B. John then spoke to Sharon who told him J.B.B. was too hard for her to handle with her illness. John's response to Sharon's request for help was that he and Sharon had always agreed not to separate the children, so he refused to take J.B.B. Thus, although John explained why he refused to take J.B.B. when Sharon and her doctor asked for help, the evidence is nevertheless sufficient to support the trial court's finding.
In Finding of Fact No. 13, the trial court found that N.B.B. saw her father hit her brother during the visit in the summer of 2005. John points out that several of his family members testified that they had never seen John hit J.B.B. And, N.B.B. had stated in the past that John had not hit J.B.B. However, N.B.B. did tell the judge during the hearing that during the summer of 2005 she had seen John hit J.B.B. because J.B.B. had soiled his pants. Thus, although the evidence was conflicting, it was for the trial judge to assess the credibility of the witnesses. Therefore, the evidence was sufficient to support Finding of Fact No. 13.
In Finding of Fact No. 14, the trial court found that in July 2005, Sharon made a video statement in which she indicated John was too unstable to have possession of the children and that she wanted Shannon and Shannon's mother to have custody of the children. In Finding of Fact No. 15, the trial court found that Sharon indicated in the videotape that one reason John was unstable was due to his consumption of alcohol. In Finding of Fact No. 16, the trial court found that Sharon indicated in the videotape that N.B.B. told her that she wanted to stay with Shannon and that N.B.B. did not feel "safe" with John. John challenges Findings of Fact Nos. 14, 15, and 16 for the reason that, although the trial judge watched the videotape, it was never admitted into evidence and therefore is inadmissible hearsay. However, the contents of the videotape came in through the testimony of Taber, the social study investigator, Shannon, and N.B.B. Also, there was testimony from John that he had been convicted of DUI in 1991 and had had his driver's license suspended numerous times. Further, there was no hearsay objection during the hearings; therefore any hearsay objection was waived. Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").
In Finding of Fact No. 41, the trial court found that N.B.B. made it very clear to the court that she did not want to live with her father. John points out that Taber, the social study investigator, testified that N.B.B. told her she would be fine if she had to live with her dad. And John testified that he and N.B.B. have a great time together. Nonetheless, N.B.B. made statements to the trial judge that she did not want to live with her father, that he has hit her in the past, that he hit her brother, that he hit her mom, and that she is afraid of him. The evidence is sufficient to support the trial court's finding.
In Finding of Fact No. 42, the trial court made a finding that N.B.B. had made some statements that if she were forced to live with her father, she would run away. This evidence came from Taber who reported that Shannon said she feared N.B.B. would run away if she had to live with her father. Again, any hearsay objection to Taber's testimony has been waived. See Tex. R. Evid. 802.
Further, we note that although John has challenged certain trial court findings, he has not challenged the vast majority of the court's findings. Unchallenged findings are binding on the appellate court unless the contrary is established as a matter of law or unless no evidence supports the finding. Davey v. Shaw, 225 S.W.3d 843, 853 (Tex. App.--Dallas 2007, no pet.).
The findings of the trial court that John has failed to challenge can be summarized as follows:
1. The children the subject of this suit are N.B.B. and J.B.B.
2. Sharon and John are the biological parents of the children.
3. Sharon died on September 22, 2005.
4. J.B.B. is moderately to severely mentally retarded.
5. The children lived continuously with Sharon from birth until one month before her death when N.B.B. began living with Shannon and J.B.B. began living at The Willows.
6. Sharon lived in Florida with the children until July 3, 2002, when she moved to Texas.
7. Sharon and John did not live together for approximately one year prior to her move to Texas.
8. From the time Sharon moved to Texas until her death, John had three visits with the children.
9. When N.B.B. and J.B.B. returned from the summer 2005 visit with John, N.B.B. had changed from an outgoing friendly girl to a quiet, wary one, and she told Shannon that she had been responsible for her brother's care while they were in Florida.
10. Sharon placed J.B.B. in The Willows and N.B.B. began living with Shannon shortly before Sharon died.
11. J.B.B.'s behavior became increasingly difficult to control as he became older and larger.
12. Due to J.B.B.'s mental retardation, he was generally nonverbal, his hygiene was extremely poor, and he was not toilet trained and wore diapers.
13. J.B.B. did not function well in the special education classes offered by the public school.
14. J.B.B. often had temper tantrums.
15. Because all of Sharon's energy went to J.B.B., N.B.B. was resentful of her brother and was unable to participate in normal childhood activities outside of the home.
16. J.B.B. requires 24-hour trained, specialized care.
17. The optimum placement for J.B.B. would be in a home setting with persons who have received proper education and training.
18. John's plan was to remove J.B.B. from The Willows and have him at home, put him in public school, and sign him up for a special Olympics program. However, John had made no significant attempts to find out about the special education programs his local school had to offer or what outside resources were available to him for J.B.B.
19. John appeared to have no realistic idea what level of care J.B.B. actually required, and he was simply intending to rely on his girlfriend and his mother to care for J.B.B. while he was working.
20. John has six children with four different mothers. His two oldest children live in Brazil with their mother.
21. John has paid very little, if any, child support for N.B.B. and J.B.B.
22. John did not pay child support for his other two children until court-ordered to do so. John has some contact with his youngest child, but he does not see his 13-year old because of some unspecified problem with that child's mother.
23. John works for his brother with a gross monthly income of $2,000. He is buying his home from his brother who appears to allow him to make payments at his convenience.
24. John's current girlfriend has been with him for several years and does not work outside the home. At the time of trial, John's girlfriend had left the country to be with her ailing mother and had not indicated when she would return.
25. John testified that he had about $300.00 per month left to support himself and anyone living with him after paying his house payment. John drives a company vehicle as his personal vehicle.
26. Although J.B.B. continued to have behavioral problems at The Willows, he had made some improvements.
27. Neither John nor Shannon had obtained training in caring for J.B.B.
28. N.B.B. had made excellent grades in school and had exemplary behavior. N.B.B.'s resentment of J.B.B. had virtually disappeared.
29. N.B.B. and Shannon visit J.B.B. about once a week and take him home about once a month.
30. N.B.B. has been able to re-establish a relationship with her adult half brother who lives in San Antonio.
After reviewing the record, we find these unchallenged findings are supported by the evidence and, therefore, are binding on this court. See Davey, 225 S.W.3d at 853
In addition to challenging certain findings of fact, John also challenges Conclusions of Law Nos. 3, 5, 6, 7, and 8. In Conclusion of Law No. 3, the trial court found Shannon had standing under the Texas Family Code as a person with substantial contact. As previously discussed, the evidence shows that Shannon did have substantial contact with the children.
In Conclusion of Law No. 5, the trial court found that the statutory presumption that John should be appointed as sole managing conservator or joint managing conservator with the right to determine primary residence has been rebutted. In Conclusion of Law No. 6, the trial court found that the presumption is rebutted because the appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair both children's emotional development. In Conclusion of Law No. 7, the trial court found that the presumption is rebutted because appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair J.B.B.'s physical development. And, in Conclusion of Law No. 8, the trial court found that because of Conclusions of Law Nos. 6 and 7, it is not in either child's best interest that John be appointed sole managing conservator or joint managing conservator with the right to determine the primary residence. All of these challenged conclusions of law relate to whether appointing John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair the children's emotional and physical development. As previously discussed, the evidence was sufficient to support such a finding, and the trial court did not abuse its discretion.
Therefore, we overrule all three of John's issues on appeal and affirm the trial court's order.
Karen Angelini, Justice

Trust for Child - Parent's breach of fiduciary duty

2007-11-11T20:47:00.000-08:00

Lisa Rodriguez v. Fred Rodriguez, No. (Tex.App.- San Antonio, Nov. 7, 2007)(Opinion by Justice Speedlin )(trust for child, breach of fiduciary duty)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 407th District Court of Bexar County

From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-11632
Honorable Joe Frazier Brown, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 7, 2007
Dispostion: Affirmed in part, reformed in part

Lisa Rodriguez appeals the trial court's judgment on a motion for contempt arguing that the evidence is factually insufficient to support the court's findings that she breached her fiduciary duty as constructive trustee for her minor child and must repay certain sums to the child's trust. She further asserts the trial court erred in denying her motion for new trial. We affirm the trial court's judgment, but reform that portion of the judgment extending the maturity date of the trust to provide that the trust shall terminate when the child reaches the age of eighteen years and one day.

Factual and Procedural Background

An agreed final divorce decree dissolving the marriage between Lisa and Fred Rodriguez was entered on May 4, 2004. (1) As part of the division of the marital estate, the decree contained a provision requiring Lisa to pay Fred $27,050 by cash, cashier's check, or money order on July 3, 2004. It was undisputed that Lisa tendered Fred a check for $22,263 in July 2004, leaving a balance of $4,787 for which Fred later obtained a judgment against Lisa. The divorce decree additionally provided that, with respect to the parties' duplex located at 354 and 356 East Craig, Lisa was to pay the mortgage and related expenses, refinance the mortgage within 60 days, releasing Fred from any liability, and "execute a trust instrument and any other documents necessary to transfer the ownership of the duplex . . . to LISA M. RODRIGUEZ as trustee for FRED RYAN RODRIGUEZ," the parties' minor child. The decree further provided that the trust would terminate when the child reached the age of 18 years and one day.

In November 2004, Fred filed a motion for enforcement of the decree alleging that Lisa had failed to establish the trust for their son, had failed to pay the mortgage payments and related expenses on the duplex, and had transferred a one-half interest in the duplex to her mother upon the refinancing of the duplex. On February 4, 2005, after a hearing, the trial court found the previous orders regarding the real property to be held in trust for the minor child were vague and unenforceable. The court entered a clarifying order requiring Lisa to establish a separate savings account for her minor son with her designated as trustee, to deposit all income from the duplex into the account, to pay all mortgage payments and expenses related to the duplex out of the account, and to provide Fred with an accounting of the income and expenses twice a year. (2) The order specifically stated that Lisa "is designated as constructive trustee for the minor child FRED RYAN RODRIGUEZ;" at the conclusion of the hearing, the court explained to Lisa that being a trustee "imposes on you a greater duty . . . to make sure that you care for it as a fiduciary; that is, make sure that you manage the property prudently and any other obligations at law."

In April 2006, Fred filed a motion for contempt alleging Lisa had violated the court's February 4, 2005 clarifying order by: (1) failing to set up a separate savings account in trust for their child; (2) depositing the monthly rental proceeds from the duplex into her personal checking account instead of a separate account for their child; (3) failing to provide an adequate accounting of the income and expenses related to the property; (4) obtaining a home equity loan on the duplex in excess of $22,000 which she used for her sole benefit; and (5) selling the duplex that was to be held in trust for their child. Fred requested that Lisa be held in contempt and fined, that a different trustee be appointed for their child, and that he be awarded $5,000 in attorney's fees. (3)

On November 28, 2006, the court held an evidentiary hearing on the motion for contempt; both Fred and Lisa testified. At the conclusion of the hearing, the court declined to hold Lisa in contempt, but found that she had breached her fiduciary duty as constructive trustee for her son because funds were removed from the trust to satisfy Lisa's personal debts with her knowledge. The court ordered Lisa to reimburse the child's trust for the actual damages caused by her breach, a total of $27,055, which was the aggregate amount deducted from the duplex sale proceeds to pay two personal debts owed by Lisa: $22,268 owed to her parents; and $4,787 owed to Fred. The court also ordered Lisa to transfer the additional $29,000 in sale proceeds, being held in a certificate of deposit and separate account, into the child's trust account. Finally, the court removed Lisa as trustee, ordered the child's trust to be set up at a bank, independent of both parents, and awarded Fred $4,500 in attorney's fees for enforcing the trust. A written "Final Judgment and Order on Motion for Contempt" reflecting the court's oral ruling was signed on January 12, 2007; it appointed the trust department of Randolph Brooks Federal Credit Union ("RBFCU") as interim constructive trustee and ordered the child's trust to be established there. In addition, the written judgment contains a provision extending the maturity date of the child's trust to his twenty-fifth birthday. Subsequently, a clarifying order was entered which removed RBFCU as trustee and appointed a third party individual as trustee for the child's trust; all other provisions of the January 12, 2007 judgment remained in effect. Lisa timely appealed.

Analysis

In her first issue, Lisa contends the evidence is factually insufficient to support the trial court's finding that she breached her fiduciary duty as trustee and that she owes $27,055 to her son's trust. In her brief, Lisa makes a convoluted argument that the "missing" trust money was actually paid to Fred under her "misunderstanding of her obligations" and her "good faith effort to comply" with the terms of the "original" divorce decree, and asserts that the trust should recover the funds from Fred, instead of her. (4)

Fred responds on appeal that this argument was not raised in the trial court and is nevertheless contrary to all the evidence in the record; he asserts that Lisa's appeal is frivolous in view of her stipulations and the evidence, and requests that we impose sanctions. While we agree that Lisa's argument on appeal is illogical in view of the evidence presented at the hearing, as well as her own stipulation, we decline to sanction her for bringing a frivolous appeal because we find some merit in her challenge to the extended maturity date of the trust, and thus her appeal is not wholly frivolous. See Tex. R. App. P. 45 (replacing former Rule 84); see also Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.--San Antonio 1999, no pet.).
At the beginning of the contempt hearing, Lisa's attorney stated on the record that Lisa agreed it was "right and fair" that she should pay back the trust for the $22,268 deducted from the sale proceeds to pay her parents' lien on the duplex, as well as the $4,787 deducted from the proceeds to pay Fred's judgment. Later, during her testimony Lisa stipulated that she owes her son's trust the $22,268 that was taken from the sale proceeds for payment of her parents' lien on the duplex; however, she refused to stipulate that she owed the $4,787 to the trust, arguing that Fred received that money and should pay it back to the trust. Given Lisa's stipulation on the record that she owes $22,268 to the trust, we will only address the sufficiency of the evidence to support the court's findings that Lisa breached her fiduciary duty and owes an additional $4,787 to the trust. (5)

At the hearing, Fred testified that several months after Lisa paid him $22,263, he obtained a judgment against Lisa for the $4,787 balance owed on the original $27,050 debt created by the divorce decree. He then filed an abstract of judgment, not intending it to encumber the duplex. Lisa conceded at the contempt hearing that she knew the $4,787 judgment was against her personally, not against her son's trust, and that she knew the title company was going to withhold $4,787 from the duplex sale proceeds thereby causing her son's trust to effectively pay her personal judgment, but she proceeded with the closing of the sale. Fred stated that he received, and retained, a check from the title company in payment of the $4,787 judgment when Lisa sold the duplex. Lisa testified that the duplex was deeded in her name, and that she signed "everything I've ever done with the duplex" in her name, not in her name as trustee for her son. She stated, however, that she made the title company and her real estate agent aware that the duplex was held in trust for her son. On the closing statement for the sale of the duplex, the "seller" is listed as Lisa, with no reference to a trust.

Further, Lisa admitted that after the February 2005 clarifying order was signed, she did not establish a separate savings account for her son with herself designated as trustee. She explained that she did not intend to disregard the court's order, but that her son already had two savings accounts available. Lisa testified that she understood she was the trustee for her son, Ryan, and agreed the judge told her she had a "fiduciary duty" at the time of the clarifying order. Lisa explained that she understood her duty was "to take care of the duplex and look after [her] son's property" and to "safeguard his money," and expressed her belief that she had done so "100%" and had "done nothing wrong." In addition, Lisa stated there was no income from the duplex to deposit in her son's accounts because the duplex was "in the negative." However, she later testified that she deposited "the income that was derived from the duplex" into her personal checking account. Finally, Lisa stated that when the duplex was sold, the title company deposited the proceeds into her checking account but then "that money went directly into an account for Ryan." Lisa stated she opened a savings account for her son at RBFCU after the duplex sale and she "explained to them about the trust;" she stated that she is not designated as a trustee on the RBFCU account, but is "on the account" and "looks over" the funds.

Based on the record before us, we hold that the trial court's finding that Lisa breached her fiduciary duty is not against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (in reviewing a factual sufficiency challenge, appellate court considers and weighs all the evidence in support of and contrary to the judgment, and will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust). It is clear from the record that the trial court based its finding that Lisa breached her duty on her prior knowledge that a portion of the duplex sale proceeds due to the trust would be deducted in order to satisfy two of Lisa's personal debts: a $22,268 debt to her parents; and a $4,787 debt to Fred. The evidence as to this finding of breach was undisputed. The record evidence is more than factually sufficient to support the court's finding of breach of duty and of the amount owed to the trust. (6) We overrule Lisa's first issue.

In her second issue, Lisa argues the court abused its discretion in denying her motion for new trial because (1) the trust funds were paid to Fred and he should be the person to reimburse the trust, and (2) neither breach of fiduciary duty nor a request for extension of the trust's maturity date were pled in Fred's motion for contempt. We review a trial court's denial of a motion for new trial for an abuse of discretion. Director, State Employees Workers'Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). We have already rejected Lisa's argument that the evidence shows that Fred, not her, should reimburse the trust. As to her argument that the court erred in denying her motion for new trial because Fred did not specifically plead breach of fiduciary duty in his contempt motion, that ground was not raised in Lisa's motion for new trial; therefore, the trial court could not have abused its discretion in denying her motion for new trial on a ground not raised. Further, Fred's contempt motion was based on allegations that Lisa had breached her duty as trustee in several ways; even though it was not phrased in terms of a "breach of fiduciary duty," the gist of the motion was a request for a finding of contempt and removal of Lisa as trustee of the child's trust based on her misdeeds as trustee. Lisa made no objection to the admission of evidence concerning her duties, actions and omissions as trustee, and never argued that the issue of breach of fiduciary duty was not before the court. Thus, the issue of breach of fiduciary duty was tried by consent. See Tex. R. Civ. P. 67; see also Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and other party fails to object).
Finally, Lisa complained in her motion for new trial that the court erred in changing the maturity date of the child's trust from eighteen to twenty-five years of age; the motion for new trial was denied by written order. The record shows that Fred did not request that the trust term be extended in his motion for contempt. Further, at the hearing there was no evidence or argument presented concerning extension of the trust's maturity date, and the court made no finding regarding extension of the trust; therefore, the issue was not tried by consent. See Frazier, 102 S.W.3d at 411. The extended maturity date first appeared in the written judgment signed by the court. It is well established that a judgment must conform to the pleadings, and a judgment rendered without pleadings to support it is fatally defective. Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979); Bilderback v. Priestley, 709 S.W.2d 736, 743 (Tex App.--San Antonio 1986, writ ref'd n.r.e.). Because the record is devoid of any pleadings, evidence or findings to support the court's extension of the trust's maturity date, we reform that portion of the judgment to provide that the trust shall terminate when the child reaches the age of eighteen years and one day, as originally provided in the divorce decree.

Except as reformed, the trial court's judgment is affirmed.

Phylis J. Speedlin, Justice

1. In her appellant's brief, Lisa Rodriguez characterizes the May 4, 2004 final divorce decree as the "second" decree, repeatedly referencing the terms of an "original" or "first" divorce decree in November 2003; however, while a proposed divorce decree containing other terms may have been previously discussed and even agreed to by the parties at one time, the appellate record does not contain a prior divorce decree signed by the trial court. Lisa attached a copy of a divorce decree dated November 13, 2003 that does not contain the trial judge's signature as an appendix to her appellant's brief. We may not consider documents not contained in the appellate record which are attached to a party's brief or appendix. Tex. R. App. P. 34.1; Samara v. Samara, 52 S.W.3d 455, 456 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). In resolving this appeal, therefore, we are only concerned with the final divorce decree signed on May 4, 2004 which appears in the clerk's record. We likewise may not consider the copy of a check attached to the appellant's brief because it is not included in the appellate record.
2. No appeal was taken from the February 4, 2006 order.
3. Fred also requested that the case be forwarded to the district attorney for prosecution for embezzlement of trust funds.
4. Lisa also asserts the divorce decree placed the duplex under a constructive trust for the benefit of her son, with her as trustee, "unbeknownst to her." The record establishes the opposite. The agreed decree reflects Lisa's signature, and Lisa admitted at the contempt hearing that she was familiar with the terms of the divorce decree, and understood that she held the duplex as trustee for her son.
5. We note, however, that the evidence presented at the hearing is more than sufficient to support the court's finding that Lisa owes $22,268 to the trust.
6. Lisa does not argue that she had no fiduciary duty, merely that she did not breach her duty. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996) (parents generally stand in the role of fiduciaries toward their minor children).

Jailed Husband's affidavit of indigence was not too late to justify dismissal of his appeal from divorce decree

2007-11-05T21:57:00.000-08:00

In two cases decided Nov. 2, 2007 the Texas Supreme Court cuts poor divorce litigants some slack and reverses the dismissal of their appeals for failure to immediately file the required affidavit of inability to pay costs.

Springer v. Springer, No. 06-0382 (Tex. Nov. 2, 2007)(per curiam)(deadline for appeal fee payment or affidavit of indigence)
MICHAEL DAVID SPRINGER v. LISA FERGASON SPRINGER; from Johnson County; 10th district (10-06-00040-CV, ___ SW3d ___, 03‑22‑06) Also see --> companion case

Michael Springer’s wife filed for divorce while he was incarcerated and Springer sought to appeal the resulting judgment dividing marital property. Springer timely filed a notice of appeal, but did not pay the filing fee or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. One month after filing his notice of appeal, Springer filed an affidavit of indigence. Two months later, the court of appeals notified Springer that his filing fee was past due and his case would be dismissed if the fee was not paid within ten days. Springer did not pay the fee. The court of appeals dismissed Springer’s appeal for failure to pay the fee or file an affidavit of indigence “with or before” the notice of appeal. We hold that the court of appeals erred in dismissing Springer’s appeal.

We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.

In this case, Springer’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Springer corrected the defect by filing his affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit him additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.

Opinion Delivered: November 2, 2007

Texas Supreme Court says mother's appeal should not have been dismissed for failure to file affidavit of indigence together with her notice of appeal

2007-11-05T21:44:00.000-08:00

Sprowl v. Payne, No. 06-0533 (Tex. Nov. 2, 2007)(per curiam)(appellate procedure, payment for record, indigence)
Full style of case: LINDA SPROWL AND J.S., A CHILD v. GEORGE MARTIN PAYNE; from Dallas County; 5th district (05-06-00062-CV, ___ SW3d ___, 05‑04‑06)
Respondent's motion to strike and to disregard the appendices granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

PER CURIAM OPINION

The trial court dismissed Linda Sprowl’s fourth paternity suit against George Payne concerning her daughter, Jennifer, based on res judicata. Sprowl timely filed a notice of appeal, but did not pay to have the record prepared or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. Seven days after filing her notice of appeal, Sprowl filed an affidavit of indigence.

The clerk contested the timeliness of Sprowl’s affidavit, and the trial court sustained that contest. The court of appeals agreed that Sprowl’s affidavit of indigence was untimely because it was not filed “with or before” her notice of appeal, and ordered Sprowl to file proof within ten days that she had paid or made arrangements to pay for the appellate record. When Sprowl failed to do so, the court dismissed her appeal. We hold that the court of appeals erred in dismissing Sprowl’s appeal.

We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to pay the filing fee or file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006).

Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007).

We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement for an appeal and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.

In this case, Sprowl’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Sprowl corrected the defect by filing her affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit her additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.

Opinion Delivered: November 2, 2007

Recent Texas Appellate Opinions on Family Law Issues

2007-10-31T17:02:00.000-07:00

Recent Domestic Relations Cases and Case Law of Interest:

Appellate Family Law Decisions from the Houston Courts of Appeals

Appellate SAPCR opinions from the Austin Court of Appeals

CPS suits and termination of parental rights appeals (Houston)

Texas DFPS termination appeals (Austin) Anders Brief appeals

Grandparent Custody Affirmed in Divorce Case

2007-10-31T16:35:00.000-07:00

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.

Substitution of Counsel: The Client is King

2007-10-31T16:19:00.000-07:00

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.

Houston Court of Appeals throws out trial court's sanctions for filing of lis pendens in the course of a divorce suit

2007-10-12T13:13:00.000-07:00

Mary Ann Parker v. Sheryl King Walton, No. (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).

Quickie marriage to much younger bride has unhappy ending

2007-10-12T13:03:00.000-07:00

Ronnie Jean Davis, Sr. v. Lisa T. Davis, No. (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.

Denial of jury trial merits reversal of order terminating parental rights

2007-10-12T12:49:00.000-07:00

In the Interest of M.A., No. (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.
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[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.

2007-09-30T16:44:00.000-07:00

OAG-Suits: In the Interest of J.D.K., A Child, No. (Tex.App.- Fort Worth Sep. 27, 2007)(Opinion by Justice Livingston )(paternity suit, retroactive support, default judgment)(Before Justices Livingston, Dauphinot and Walker)
Appeal from 415th District Court of Parker County
Disposition: Affirmed

Appellant Carl K., pro se, appeals from the trial court=s default judgment against him in this suit to establish the parent-child relationship filed by the Attorney General. Although appellant does not assign specific issues or points to his complaints, he does complain that (1) the default judgment should be set aside because he could not attend the hearing through no fault of his own because he had been in a car accident, (2) retroactive child support should not have been awarded to appellee Lisa K. because their daughter, J.D.K., had not lived with Lisa since she was twelve years old, and (3) he has evidence showing that he did support J.D.K. in the past until she decided to move out on her own and marry. We affirm.

On January 23, 2006, when J.D.K. was seventeen years old, the Attorney General filed a petition to establish Carl=s paternity[2] and order him to pay current and retroactive child support. Although he was served with citation and received notice of the hearing on the petition, Carl failed to appear at the July 21, 2006 hearing. The trial court entered a default judgment against him after hearing testimony from Lisa regarding Carl=s failure to pay child support in the amount of $8,320.[3] The default judgment orders Carl to pay retroactive child support of $8,320 to Lisa in $300 installments beginning August 1, 2006. It also requires him to pay court costs.

Carl did not file any document purporting to be a motion for new trial. On August 11, 2006, twenty-one days after the hearing, Carl filed a sworn AAffidavit of Inability@ with the trial court, in which he averred that he could not pay court costs due to his unemployment and debts. In the affidavit, he also states that he believes he has a Ameritorious claim.@ The same day, he filed a notice of appeal stating that he Acould not be in court due to an auto accident [a]nd could not be heard to give testimony about this cause.@ He also stated in the notice of appeal that J.D.K. had not lived with Lisa for the last four years and that the amount set by the trial court did not follow the Attorney General=s percentage of income guidelines.[4] The trial court did not hold a hearing or make any ruling as to the assertions set forth in Carl=s affidavit of inability or notice of appeal.

When extrinsic evidence is necessary to challenge a default judgment, a motion for new trial is a prerequisite to complaining on appeal that it should be set aside. See Tex. R. Civ. P. 324(b)(1); Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.CHouston [1st Dist.] 2000, pet. denied); Zuniga v. Zuniga, 13 S.W.3d 798, 802 (Tex. App.CSan Antonio 1999, no pet.), disapproved of on other grounds by In re Z.L.T., 124 S.W.3d 163 (Tex. 2003); see also Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939) (establishing matters defendant must prove to obtain new trial after default judgment). In the motion for new trial, the movant must (1) establish that the failure to answer was not intentional or the result of conscious indifference, (2) set up a meritorious defense, and (3) demonstrate that setting aside the default judgment would not delay or otherwise injure the plaintiff. In re R.R., 209 S.W.3d 112, 114-15 (Tex. 2006); Craddock, 133 S.W.2d at 126; In re K.B.A., 145 S.W.3d 685, 691 (Tex. App.CFort Worth 2004, no pet.). To successfully challenge a default judgment, the movant must allege, and support with sworn proof, the three Craddock requirements. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.CFort Worth 2003, no pet.); Pickell v. Guaranty Nat=l Life Ins. Co., 917 S.W.2d 439, 443 (Tex. App.CHouston [14th Dist.] 1996, no writ).

Even if we were to construe the statements in Carl=s affidavit of inability and notice of appeal as a motion for new trial, see Zuniga, 13 S.W.3d at 802-03, the allegations set forth in those documents are not supported by sufficient sworn proof; thus, they would not entitle Carl to relief. See Ivy, 407 S.W.2d at 214-15; Kelley, 103 S.W.3d at 644; Massey, 35 S.W.3d at 699; Pickell, 917 S.W.2d at 443. And because Carl did not file a motion for new trial with supporting proof, the allegations in his brief are not included in the appellate record. Accordingly, we overrule Carl=s complaint that the trial court improperly entered a default judgment against him for failure to appear. Because none of Carl=s remaining complaints are supported by the record, we overrule them as well.

Having overruled all of Carl=s complaints, we affirm the trial court=s judgment.

TERRIE LIVINGSTON
JUSTICE

PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: September 27, 2007

[1]See Tex. R. App. P. 47.4.
[2]Although no evidence of Carl=s alleged paternity was admitted at trial, Carl admits in his brief that he is J.D.K.=s father. Moreover, his complaints appear to concern only the retroactive child support award rather than the adjudication of his paternity.
[3]By the time of trial, J.D.K. was eighteen years old, so the trial court did not establish conservatorship or order future child support or medical support.
[4]When the obligor=s monthly net income is less than $6,000, the child support guidelines provide the obligor to pay twenty percent of the monthly net income for one child. See Tex. Fam. Code Ann. ' 154.125(b) (Vernon 2002) (amended effective Sept. 1, 2007, to increase amount to $7,500); see also id. '' 154.009(b) (requiring trial court to follow statutory child support guidelines when ordering retroactive support), 154.068 (AIn the absence of evidence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40‑hour week.@), 154.131 (providing factors for court to consider in awarding retroactive support) (amended effective Sept. 1, 2007 to add subsection (f)). Here, the State introduced Exhibit 1, which it represented was calculations for the retroactive child support judgment. That exhibit lists the amounts of net monthly income from 2006 to 2006; for each year, the corresponding monthly child support amount is calculated to be $160, which is approximately twenty percent of the net monthly income for each year. For example, the net monthly income for 2005 is listed as $783.60; twenty percent of that is $156.72, and seven monthly payments were shown as unpaid. But for 2006, for which twelve monthly payments were unpaid, the net income was shown as $803.45, twenty percent of which is $160.69.

Parental Presumption does not apply in SAPCR modification proceeding - order terminating grandparent access reversed

2007-09-30T16:23:00.000-07:00

Grandparent access: In the Interest of M.A.S. and M.B.S., Children, No. (Tex.App. - San Antonio, Sep. 12, 2007)(Opinion by Chief Justice López)(grandparent access)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 81st District Court of Wilson County
Disposition: Reversed and remanded

IN THE INTEREST OF M.A.S. and M.B.S., Children

From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 04-12-0553-CVW
Honorable Stella Saxon, Judge Presiding
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 12, 2007

REVERSED AND REMANDED

Reanell Speer appeals the trial court's order modifying the parent-child relationship and terminating her access to her grandchildren. Speer contends that the trial court erred in applying a parental presumption in the modification proceeding. We reverse the trial court's order and remand the cause to the trial court for further proceedings.

Background

Milisia Bielstein and Thomas Swanson are the parents of two children, M.A.S. and M.B.S. Reanell Speer is the children's maternal grandmother. In May of 2004, the trial court issued a custody order naming Bielstein and Swanson as joint managing conservators and Speer as possessory conservator of the children. In January of 2006, Bielstein filed a motion to modify the parent-child relationship, requesting that Speer's access to the children be terminated. After a hearing, the trial court granted Bielstein's motion. This appeal followed.

Standard of Review

We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Analysis

Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an original custody proceeding but not to a modification proceeding. We agree.

In V.L.K., the Texas Supreme Court held that the parental presumption contained in section 153.131 of the Texas Family Code applied only in original custody determinations and not in modification suits. 24 S.W.3d at 339-40. The court made a distinction between Chapter 153 of the Family Code, which governs original custody determinations and contains a parental presumption, and Chapter 156 of the Family Code, which governs modification suits and does not contain a presumption. Id. at 341-43. Because the legislature did not include a parental presumption in Chapter 156, the court held that the presumption did not apply in modification suits. Id. at 343. Like the presumption in V.L.K., the parental presumption involved in this case is also contained in Chapter 153, and its applicability is therefore also limited to original custody determinations. See id.; Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).

Thus, the trial court erred in applying a parental presumption in this case.

The correct standard is contained in section 156.101, which places the burden on the person seeking modification of an existing custody order to show that modification would be in the best interest of the child and that the circumstances of at least one of the parties affected by the order have materially and substantially changed since the order took effect. See Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2007).

Bielstein argues that there is no evidence that the trial court applied a parental presumption in this case. We disagree. During a hearing on Bielstein's motion to enter the trial court's modification order, Bielstein argued that the trial court should enter the order based on In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006), which relied extensively on the plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000) in holding a visitation statute unconstitutional. Mays-Hooper, 189 S.W.3d at 777-78. In Troxel, the plurality held a visitation statute unconstitutional mainly because the statute did not include a presumption that a fit parent acts in the best interest of her children. 530 U.S. at 68-70. In Mays-Hooper, the court stated that it reached the same result as that in Troxel because the facts in both cases were "virtually the same." 189 S.W.3d at 778. Speer argued at the hearing that the parental presumption involved in Mays-Hooper applied to only original custody determinations and not to modification proceedings.

After hearing arguments from both parties, the trial court concluded that "[b]ased upon the applicable law in the State of Texas the court finds that in this particular case the Mays-Hooper standard does apply." Later, at a hearing on Speer's motion for reconsideration and new trial, the trial court stated that "[i]t seems to me that the entire direction that the law is going in is a recognition by the courts that parents have a right to determine access to their children." The trial court's comments make it clear that the court applied a parental presumption in this case.

Because the parental presumption does not apply in modification suits, the trial court abused its discretion in applying the presumption in this case. Accordingly, we reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.

Conclusion

The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. (3)
Alma L. López, Chief Justice

1. Although the opinion in In re V.L.K. was issued before the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), Bielstein does not argue in her brief that Troxel affects the holding in In re V.L.K., and at least one court has expressly addressed the continuing validity of the Texas Supreme Court's decision post-Troxel. See In re M.N.G., 113 S.W.3d 27 (Tex. App.--Fort Worth 2003, no pet).

2. The relevant provision of section 153.433 of the Texas Family Code states that the court must order reasonable possession of or access to a grandchild by a grandparent if, among other things, "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).

3. Speer also contends that the trial court erred in: (1) failing to make a record of the modification hearing and failing to consider evidence at the hearing; (2) granting the motion to modify when there was no evidence that the circumstances of any parties affected by the order had materially or substantially changed and no evidence that the modification was in the best interest of the children; and (3) excluding evidence that the children's physical or emotional well-being would suffer if the court did not grant grandparent visitation. We need not address these issues because our analysis of the trial court's application of the parental presumption is dispositive of this appeal. See Tex. R. App. P. 47.1.

Granger v. Granger (Tex.App.- Tyler, Sep. 26, 2007)

2007-09-30T16:01:00.000-07:00

Karen Granger v. Helen Granger, Elijah Granger, Chester Benjamin, Sarah Reed, Joseph Benjamin, Susie Williams and Tony Granger, No. (Tex.App.- Sep. 26, 2007)(Opinion by Hon. Griffith)(affirmed)(marital property, community property presumption, separate property, life insurance policy)
Appeal from 159th District Court of Angelina County

OPINION

Appellant Karen Granger appeals the trial court’s judgment denying her claim to one-half of a life insurance policy purchased by her deceased husband. In three issues, Karen argues that the beneficiaries of her husband’s life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property and that, if the policy was community property, the gift of the proceeds was a fraud on the community estate, entitling her to an appropriate remedy.

Background

Karen and Danny Granger were married on May 24, 1999 and had two children during the marriage. In 2003, Danny purchased two life insurance policies, one from Monumental Life Insurance Company in the amount of $150,000.00 and the other from Old Line Life Insurance Company of America in the amount of $100,000.00. Danny named his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries of the Monumental policy. He named his mother, four brothers, and two sisters as beneficiaries of the Old Line policy. Danny paid the premiums for both policies through automatic drafts from his Regions Bank account. The first Monumental policy premium was drafted on March 4, 2003 in the amount of $15.00 and the first Old Line policy premium was drafted in May of 2003. Danny died on October 27, 2003. After his death, Monumental distributed the proceeds of its policy to Helen Granger and Elijah Granger.
On March 22, 2004, Old Line filed suit, seeking to deposit funds in the court’s registry to resolve conflicting claims to the proceeds of its insurance policy. Karen, Helen, and Danny’s four brothers and two sisters were named defendants. Karen filed a cross action against Danny’s mother, four brothers, and two sisters, claiming that Danny’s gifts of her one-half community interest in the policies constituted fraud on her and on the community estate. The trial court ordered that Old Line’s policy proceeds be deposited into the registry of the court. After a bench trial, the trial court found that Danny had community funds in his possession when he purchased the Old Line policy and that one-half of the policy was Karen’s community property. However, the trial court found that Danny used separate property funds to purchase the Monumental policy and, thus, the policy was Danny’s separate property. The trial court ordered that Karen recover one-half of the proceeds of the Old Line policy, but that she take nothing on her claims regarding the Monumental policy. The trial court also ordered that Danny’s mother, four brothers, and two sisters recover the other one-half of the proceeds of the Old Line policy.
In its findings of fact and conclusions of law, the trial court stated as follows:

1. Danny and Karen were married on May 24, 1999, and ceased to live together as husband and wife approximately one year before his death as a result of an auto accident on or about October 27, 2003, in Lufkin, Angelina County, Texas.

2. Danny was totally disabled as determined by the Social Security Administration as of June 22, 2000, and was awarded Supplemental Security Income (“SSI”) which was paid monthly to him with payments being made to Sarah Reed for Danny beginning July 1, 2000.

3. Danny received $457.00 in SSI payments for each month during the year of 2003, through the month of his death in October 2003. The SSI payments paid to Danny because of his total disability was received by his sister, Sarah Reed, and thereafter paid over to Danny in cash payments.

4. Danny purchased a life insurance policy through Regions Bank accidental death insurance plan with an effective date of March 1, 2003, issued by Monumental providing for $150,000.00 for accidental death benefits.
5. Danny paid the monthly premiums to Monumental by a bank draft through Regions Bank in the amount of $15.00 per month with the first premium being paid on March 4, 2003.

6. Danny possessed no monies other than monies received by him through his SSI payments and gifts from family members at the time of the purchase of the life insurance policy on his life through Monumental.

7. Those funds on deposit on March 4, 2003, in Danny’s account with Regions Bank was the separate property of Danny.

8. Danny had no community property monies at the time of the purchase of the life insurance policy on his life with Monumental.

9. Danny designated his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries in equal shares of the life insurance proceeds to be paid under the policy issued by Monumental.

10. After Danny had purchased life insurance from Monumental on his life, he received a check from Willie Spikes, Jr., in the amount of $315.00 dated March 12, 2003, which was presumed to be community property of Danny and Karen.

11. Danny purchased a life insurance policy issued on his life by Old Line effective May 3, 2003, after Danny had in his possession those funds paid to him by Willie Spikes, Jr. in the amount of $315.00.

12. The cross-defendants proved that the life insurance policy issued by Monumental on the life of Danny was the separate property of Danny by rebutting the presumption that the same was community property by clear and convincing evidence.

13. At the time of inception of title by Danny of the Monumental policy[,] the policy was characterized as separate property because it was acquired by the use of separate property funds.

14. Cross-defendants failed to rebut the presumption that the life insurance policy purchased by Danny from Old Line during his marriage to Karen was not the community property of Danny and Karen.

This appeal followed.

Separate Property

In her first issue, Karen argues that the beneficiaries of her husband’s Monumental life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property.
Standard of Review
We review a trial court’s division of property under an abuse of discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.–Dallas 2005, pet. denied); see also Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.–San Antonio 2006, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. A trial court’s findings of fact are reviewed for legal and factual sufficiency of the evidence under the same legal standards applied to review jury verdicts for legal and factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
However, in family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review and, as a result, legal and factual sufficiency are not independent grounds of reversible error. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Instead, they constitute factors relevant to our assessment of whether the trial court abused its discretion. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Thus, in considering whether the trial court abused its discretion because the evidence is legally or factually insufficient, we apply a two prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. We then consider whether, based on the evidence, the trial court made a reasonable decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
We review the trial court’s conclusions of law de novo. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.–Houston [14th Dist.] 2003, pet. denied). The standard of review for conclusions of law is whether they are correct. Id. We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Id. Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.
Applicable Law
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Id., § 3.003(b); Garza, 217 S.W.3d at 548. “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. Tex. Fam. Code Ann. § 101.007 (Vernon 2002). In order to overcome the community property presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.–Fort Worth 2004, no pet.). A spouse’s separate property consists of the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam. Code Ann. § 3.001 (Vernon 2006).
Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Boyd, 131 S.W.3d at 612. As a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community property presumption. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 855. Any doubt as to the character of property should be resolved in favor of the community estate. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 856. The presumption that obtains when the marriage is dissolved applies to dissolution by death as well as divorce. Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App.–Austin 1999, pet. denied). Social security benefits are not subject to division under community property laws because the language in 42 U.S.C.A., section 407 of the Social Security Act manifests a congressional intent to preempt state law. Richard v. Richard, 659 S.W.2d 746, 747-49 (Tex. App.–Tyler 1983, no writ) (citing In re Marriage of Kelley, 64 Cal. App. 3d 82, 98, 132 Cal. Rptr. 259, 268 (1976)). The provisions of section 407 of the Social Security Act apply to Supplemental Security Income benefits to the same extent pursuant to section 1383(d)(1) of the Social Security Act. See Social Security Act, 42 U.S.C.A. § 1383(d)(1) (West, Westlaw through Feb. 2006).
Analysis
At trial, Karen testified that she and Danny were separated about one year before his death on October 27, 2003. When they married, Danny worked at the Atkinson Candy Kitchen and did carpentry work in the evenings and on weekends. About a year after they were married, Danny quit working at the Candy Kitchen and began receiving SSI, but continued to work as a carpenter. Karen agreed that Danny’s SSI check went to his sister, Sarah Reed, on the first of every month. Karen stated that, most of the time, Danny paid his child support when he received the check. She denied that Danny relied upon his family for support or that he was living with his mother when he died. Other than the $315.00 check from Willie Spikes, Jr., Karen had no other documentation regarding any monies that Danny earned in the year after they separated. Karen admitted that Danny borrowed money from her at times after they separated. Although Karen stated that she saw people pay Danny money for carpentry work, she admitted that this occurred before their separation. She acknowledged that she did not have access to Danny’s bank accounts.
Willie Spikes, Jr. testified that, in March of 2003, he hired Danny to remodel his residence. As payment for the work, Spikes wrote a check to Danny in the amount of $315.00 on March 12, 2003. Danny’s bank records show that he deposited $200.00 of this check into his Bank of America account on March 13, 2003. This check was deposited after Regions Bank drafted the Monumental premium on March 4, 2003. Spikes also testified that while Danny worked for him, people would frequently approach Danny asking him to perform carpentry jobs for them. Two other witnesses testified that Danny performed carpentry work for them, but admitted that he did the work about two months before his death on October 27, 2003.
Sarah Reed, Danny’s sister, testified that she helped him obtain SSI benefits because he suffered from schizophrenia. Sarah stated that Danny received a check each month for SSI benefits in the year before his death, but that she handled his funds. Sarah stated that when she received Danny’s SSI check, she either deposited it into her account or cashed the check. Because she advanced Danny monies “all of the time,” she would deduct the amount advanced from his SSI check and give him the rest of it. She denied that Danny was able to perform carpentry work in the year before he died. At that time, she stated that any work Danny might have done would have been minimal because he was very sick. Sarah had no knowledge of any work that Danny performed from November 2000 to the date of Spikes’s check which would have gained him any income. As far as she knew, Danny had no other funds from which to purchase life insurance besides his SSI check.
Sarah stated that Danny lived with their mother and did not pay rent. Nor did he have the money to help pay for his mother’s utilities. She testified that her mother and all of their siblings gave Danny money because he was always “broke.” To her knowledge, Danny spent most of the last year of his life at home and did not work for any extended period of time. She stated that Danny paid Karen child support after their separation and, to the best of her knowledge, it was paid from his SSI benefits.
Elijah Granger, Danny’s brother, testified that he lived next door to his mother and Danny. He agreed that Danny suffered from schizophrenia and had long periods of depression. Other than the time Danny worked for Spikes, Elijah was not aware of any time that Danny had any kind of employment for Spikes or anyone else during the last months of his life. Because he lived next door to his mother and Danny, Elijah saw Danny daily. Elijah stated that most of the time Danny would be sitting in his “studio,” playing his guitar. He was not aware that Danny performed any work for Spikes, although he stated that Danny did practice his guitar with Spikes, who was also a musician. The only money he knew Danny had during the last year of his life that would have allowed him to purchase life insurance was his SSI check. Almost every time Elijah saw Danny, he was “broke” and needed money. If Danny needed help, such as gas money or money to go to the store, he provided it. Suzie Anna Williams, Danny’s sister, testified that Danny was always “broke.” She was not aware that he worked regularly during the last year of his life. Other than his SSI check, Suzie did not believe Danny had any funds to pay for insurance premiums.
Regarding Danny’s Regions Bank account, the evidence showed that he had no deposits over $200.00 for the months from April of 2002 through November of 2002. During these months, his account was frequently overdrawn. When he deposited $500.00 in December of 2003, his account had a balance of $1.98. At the beginning of January, the account had a balance of $0.97. He deposited $20.00 on February 4, 2003, leaving a balance of $15.97. In February, Danny made two other deposits totaling $170.00. At the time the Monumental premium was drafted on March 4, 2003, the account had a balance of $52.04. At the same time, the balance in his bank account with Bank of America was $18.92. At the end of December 2002, his Bank of America account had a $20.42 balance, although he deposited $500.00 on December 4, 2002. Danny’s Bank of America account was overdrawn for almost the entire month of January 2003, and he made only three deposits totaling $50.00 from January 2003 until March 12, 2003. The evidence also shows that Sarah gave Danny a check in the amount of $452.00 on January 30, 2003 and that Danny paid Karen $500.00 on February 28, 2003. None of Sarah’s deposit slips from January through March 2003 match the amount of Danny’s SSI check.
Because the Monumental policy was purchased during the marriage, the policy is presumed to be community property. See Tex. Fam. Code Ann. § 3.003(a). However, Danny’s relatives with knowledge of his financial matters testified that he had no income from approximately October 2002 to March 4, 2003 other than his SSI benefits or their gifts to him, both of which were his separate property. See Tex. Fam. Code Ann. § 3.001; Richard, 659 S.W.2d at 747-49. Further, they denied that he worked as a carpenter regularly during the last year of his life and said he was usually “broke.” Although Karen disputed their testimony, we note that, in a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). As fact finder, the court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. The trial court could have believed Elijah and Sarah, relatives who lived close to Danny during the last year of his life, and disbelieved Karen from whom he had been separated.
The only documented community property income Danny received was earned after he purchased the Monumental policy. His Regions Bank account had only a nominal balance at the beginning of January 2003 and the deposits in January and February of 2003 were never documented as being anything other than SSI benefits or gifts from his family. Although Sarah’s account did not show that she deposited Danny’s SSI check in February or March of 2003, she could have given him cash from those checks as reflected by her testimony. Further, Danny’s Bank of America account was either overdrawn or showed little activity between January and March 4, 2003. Because Danny’s relatives testified that he did not have any income other than SSI and gifts from family from approximately October 2002 to March 4, 2003 and his bank records did not document any such income, there was sufficient evidence to rebut the community property presumption and the trial court did not abuse its discretion in finding the Monumental policy to be Danny’s separate property. See Garza, 217 S.W.3d at 548-49; Moroch, 174 S.W.3d at 855-57. Accordingly, we overrule Karen’s first issue. Because our holding on Karen’s first issue is dispositive, we need not consider her remaining issues.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH
Justice

Opinion delivered September 26, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

MTM child support: Mother raises 37 issues in pro se appeal; loses on all of them - mostly for failure to preserve error in the trial court

2007-09-30T15:37:00.000-07:00

Waco Court of Appeals goes to great length to explain the law in this suit to modify child support and provides guidance for trial and appellate practitioners on what errors to avoid. - Texas Supreme Court has since struck unhappy appellant's petition for review.

Cathy Burgess v. Mohammed Feghhi, No. (Tex.App.- Waco, Jul 31, 2007)(Opinion by Hon. Hoyle). Appeal from 321st District Court of Smith County

MEMORANDUM OPINION

Cathy Burgess appeals from an order for modification of child support. Burgess presents thirty-seven issues for our consideration. We affirm.

Background

Burgess and Mohammad Feghhi are the parents of S.A.B., born August 2, 1988. On July 30, 1991, a Bexar County trial court modified the existing child support order and ordered that Feghhi pay Burgess child support of $175.00 a month. On June 23, 2003, the Attorney General filed a motion to modify child support, which included a request that Feghhi produce certain financial and health insurance information. The Attorney General also filed a motion to transfer the suit to Smith County, S.A.B.’s residence. The trial court granted the motion and transferred the suit to Smith County.
On May 13, 2004, an assistant attorney general and Feghhi’s counsel attended a hearing on the motion to modify. The Assistant Attorney General stated that he had not received the financial information he had requested from Feghhi and had not informed Burgess of the hearing. As a result, the Assistant Attorney General and Feghhi’s counsel agreed, in open court, to reset the hearing for May 27, 2004. Fegghi agreed to produce the documents requested by the Assistant Attorney General. On May 27, 2004, the trial court conducted a brief hearing on a motion for enforcement against Burgess. The motion to modify was not addressed.
On June 4, 2004, Burgess filed an “open records” request that Feghhi produce documents on “any and all open records as described by Texas law.” On the same date, she filed a request for Feghhi to produce documents and things.
On June 28, 2004, the trial court held a hearing on the Attorney General’s motion to modify, at which all parties were present. The Assistant Attorney General stated that he and Feghhi had agreed to modify Feghhi’s child support obligation to $575.00 a month beginning June 1, 2004. However, he stated that Burgess was not a party to the agreement and that she believed Feghhi should pay more child support. At that point, the trial court observed that S.A.B. was in the courtroom and ordered that she leave.
Burgess stated that Feghhi made more money than he had disclosed, but she was not sure how much he should pay in child support. She also told the trial court that Feghhi had not produced documentation that she had requested. Feghhi responded that the request for production was sent less than thirty days before the hearing, that his responses were not due until July 4, that the requests were not clear or specific, and that all the requests were objectionable. After examining Burgess’s request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother.
Feghhi stated that he had agreed to pay $575.00 a month in child support and produced his 2002 and 2003 income tax returns. Fegghi’s attorney informed the trial court that Feghhi had two other children to support. The Assistant Attorney General stated that he considered depreciation in his calculations for the negotiated settlement for child support along with Feghhi’s tax returns and information relating to his properties and payments. Feghhi’s attorney believed he had shown Burgess records regarding real estate or houses that Feghhi had purchased. He explained, without objection, that Fegghi was a resident of the United States, but had been born in Iran. According to Feghhi’s attorney, Feghhi’s sister transferred monies from Iran through a third country to an account in Feghhi’s name to purchase a house. Feghhi produced records from his sister’s bank showing the transfer of monies and copies of wire transfers showing that the house Feghhi occupied was owned by his sister. According to Fegghi’s attorney, records may indicate that Feghhi owned certain monies or properties that were, in fact, owned by members of his family. In response, Burgess stated that Feghhi owned the property even though he claimed it was his sister’s. She pointed out that Feghhi was in a cash business. She also stated that Feghhi’s income tax returns never changed and that since 1990, he had claimed only $45,000 in earnings each year. However, Burgess produced no evidence to support her argument. Although Burgess complained about the amount of child support in the past, both Feghhi and the Assistant Attorney General denied that retroactive child support was an issue. The trial court requested that Feghhi produce documentation indicating the cost of goods sold in his business and concluded the hearing.
On June 28, Feghhi filed his answers to Burgess’s request for production, objecting to a number of the requests and asking for a hearing on his objections.
On September 8, the trial court conducted the final hearing on the Attorney General’s motion to modify. On that same date, before the hearing, Burgess filed numerous pleadings, including a pleading entitled “Concerning Motion to Quash” in response to Feghhi’s motion to quash and a request for production of documents and things. She also filed a pleading containing a motion to compel “all discovery,” to exclude and dismiss Feghhi’s motion to quash and assess sanctions, to penalize Feghhi for not producing discovery, to take judicial notice of documents, and to order the rest of discovery. The pleading included a request that Feghhi reimburse her for obtaining discovery. Burgess also filed a motion to amend “the proceedings” to include claims of fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi.
Feghhi and his attorney appeared at the hearing by telephone without objection. Feghhi’s attorney told the court that he had produced documents to support Feghhi’s income tax returns. The trial court stated that Feghhi also produced a profit and loss statement. The Assistant Attorney General responded that this documentation, which he had examined, did not change their agreement on child support. However, Burgess believed otherwise. She stated that the information provided by Feghhi was not complete because he provided documentation regarding only one of his businesses, not all of them. Feghhi’s attorney stated that Feghhi’s businesses were identified by different names because they were located on different properties. Burgess stated that she believed Feghhi earned approximately $1 million per year.
Regarding discovery, Burgess stated that she received some of the documents she requested. Nonetheless, she claimed that Feghhi “frauded” her by not answering discovery. Feghhi’s attorney told the court about the additional discovery requests Burgess had filed before the hearing. The trial court told Burgess that she could not obtain discovery after the case closed. In response, Burgess stated that she had filed proper pleadings that day, but never elaborated on the content of those pleadings. She protested that she had not had an opportunity to present her case. She stated that “he,” indicating Feghhi or his attorney, kept “butting in,” that he “started” the case, and that the rules of court were different from what she had supposed.
Burgess also complained about a lack of documentation regarding Feghhi’s sister’s financial activities relating to Feghhi and the transfer of monies. Burgess objected to Feghhi’s argument that certain properties were his sister’s because his sister was not present at the hearing. She stated that Feghhi’s profit and loss statement reflected that he earned approximately $488,000 annually. Burgess also stated that Feghhi did not return S.A.B.’s medical bills as ordered and, thus, he was in contempt of court. She believed he owed her approximately $6,000 a month in child support. The trial court stated that this amount was over the child support guidelines. Burgess continued arguing, repeating her previous arguments at times.
During the hearing, Burgess attempted to file certain documents, but the trial court refused to accept them stating that they were improper for filing. The trial court acknowledged that Burgess had filed a new lawsuit or petition that day, but stated that it could not take up the petition at the hearing. However, the trial court agreed to take a box of documents that Burgess had referred to during the hearing and examine them before ruling. Feghhi agreed to return the originals of S.A.B.’s medical bills.
On November 9, 2004, the trial court found that Feghhi’s gross income was $5,000 a month and ordered that Feghhi provide health insurance. A day later, the trial court ordered that child support be made retroactive to the date Feghhi was served with the motion to modify. On November 15, the trial court signed an order finding that Feghhi’s monthly net resources were $3,569.33, ordering that Feghhi pay Burgess current child support of $571.09 each month beginning November 1, 2003, and ordering Feghhi to obtain health insurance for S.A.B. Burgess appealed pro se. Feghhi did not file a brief.1

Discovery (Issues 1-9)

Burgess contends that the trial court abused its discretion by denying or limiting discovery concerning Feghhi’s ability to pay child support and by not compelling discovery about Feghhi’s family’s assets to show fraudulent transfers. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.” This, she contends, caused an incorrect, and lower, determination of child support. Further, she argues that the trial court abused its discretion by refusing to permit additional discovery at or after the final hearing and by failing to require compliance with sections 154.063 and 154.185 of the Texas Family Code. She also contends that Feghhi had a duty to produce the discovery she requested immediately after the discovery was sent because her request was pursuant to the Texas Family Code, and not the general discovery rules. Burgess argues further that Feghhi waived his objections to her discovery because they were not timely made, and that he failed to produce discovery. Finally, she argues that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery.
Denying and/or Limiting Discovery of Ability to Pay Child Support
We review a trial court’s ruling on discovery requests for an abuse of discretion. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 643 (Tex. App.–Houston [1st Dist.] 2002, no pet.). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Id. at 241-42. In other words, we must determine whether the act was arbitrary or unreasonable. Id. at 242. The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

A trial court’s discovery decision is an abuse of discretion when

1. the appellate court would not be able to cure the trial court’s discovery error, such as when privileged information or trade secrets would be revealed or a disproportionate burden would be imposed on the producing party to furnish patently irrelevant or duplicative documents;

2. the party’s ability to present a viable claim or defense is compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case; or

3. the trial court’s discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error.

Wheeler, 95 S.W.3d at 644.

At the June 28 hearing, Feghhi produced his 2002 and 2003 income tax returns and copies of wire transfers showing that the house he occupied was owned by his sister. He also stated that he had shown Burgess records regarding real estate or houses he had purchased. Further, after examining Burgess’s June 4 request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother. At the September 8 hearing, Feghhi stated that he had produced the documents ordered by the trial court, including documentation to support his income tax returns and a profit and loss statement.2
From the clerk’s record and Burgess’s own argument, it appears that she received some of the documents the trial court ordered Feghhi to produce that were identified in the June 4 request for production. Feghhi also produced other documents as ordered by the trial court. Burgess wanted Feghhi to produce all of his profit and loss statements from all of his businesses and to produce documents that reflected Feghhi was receiving money from “outside.” According to Feghhi’s attorney, his profit and loss statement reflected that his businesses were classified under one name even though they were on different city lots under different names. The trial court accepted this explanation and did not require Feghhi to produce any other documents.
Feghhi produced the documents the trial court ordered regarding his income, financial status, and properties. The trial court considered the arguments of the parties, reviewed the documents Feghhi produced, and concluded that it had sufficient information before it to rule on the Attorney General’s motion to modify. Based upon our review of the record, we cannot conclude that the trial court abused its discretion by denying Burgess the opportunity to conduct additional discovery relating to Feghhi’s ability to pay child support. See id.
Additionally, Burgess complains that the trial court abused its discretion by failing to compel discovery about Feghhi’s family’s assets to show fraudulent transfers. The trial court ruled that Feghhi was not required to produce documents regarding businesses or properties owned by his sister and brother. The Texas Rules of Civil Procedure contain no requirement that a party obtain a nonparty’s personal financial information and produce the information in response to a discovery request. Thus, the trial court’s failure to compel the requested discovery was not an abuse of discretion. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud. This, she contends, caused an incorrect, and lower, determination of child support. We have concluded that the trial court did not abuse its discretion in denying or limiting discovery regarding Feghhi’s ability to pay child support. Because the trial court did not abuse its discretion in denying or limiting Burgess’s discovery, it did not deny her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.”
Refusing to Permit Additional Discovery at or after Final Hearing
The scope of discovery is largely within the discretion of the trial court, and the court’s action cannot be set aside unless there is a clear showing of abuse of discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 652 (Tex. App.–Houston [14th Dist.] 1987, writ denied). To support a reversal, the trial court’s refusal to permit discovery must have been such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Lovelace, 733 S.W.2d at 652.
In cases under the Texas Family Code, the discovery period begins the date a cause is filed and continues until thirty days before the date set for trial. See Tex. R. Civ. P. 190.3(b)(1)(A).3 Thus, the discovery period in this case ended, at the latest, thirty days before the September 8 hearing. The clerk’s record shows that Burgess filed a second request for production of documents and things on September 8, the date of the final hearing. Because Burgess filed this discovery request after the discovery period ended, the trial court did not abuse its discretion in refusing to permit the discovery. See Tex. R. Civ. P. 190.3(b)(1)(A).
Failing to Require Compliance with the Texas Family Code
Section 154.063 of the Texas Family Code requires a party to furnish information sufficient to accurately identify that party’s net resources and ability to pay child support and to produce copies of income tax returns for the past two years, a financial statement, and current pay stubs. Tex. Fam. Code Ann. § 154.063 (Vernon 2002). Section 154.185 requires the trial court to order a parent providing health insurance to furnish certain information to the obligee, obligor, or child support agency not later than the thirtieth day after the date the notice of rendition of the order is received. Id. § 154.185 (Vernon 2002).
As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule on the request, objection, or motion, and the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2).
Pursuant to section 154.063, Feghhi produced his income tax returns for the past two years and a financial, or profit and loss, statement. See Tex. Fam. Code Ann. § 154.063. According to the record, he did not produce his current pay stubs. However, Burgess did not timely object during either hearing to Feghhi’s failure to produce his pay stubs nor did she file a motion to compel production of his pay stubs. See Tex. R. App. P. 33.1(a)(1), (2). Thus, Burgess has waived this complaint.
The final modification order required Feghhi to furnish Burgess and the Attorney General documents regarding the health insurance policy he obtained covering S.A.B. See Tex. Fam. Code Ann. § 154.185. Burgess’s argument on appeal consists of only a conclusory statement that Feghhi failed to send the medical insurance documents to her or the Attorney General’s office after the final hearing. The jurisdiction of this court is, except where otherwise specially provided, appellate only. Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004); see also Thorp Springs Christian College v. Dabney, 37 S.W.2d 193, 196 (Tex. Civ. App.–Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail, 435 S.W.2d 624, 625-26 (Tex. Civ. App.–Tyler 1968, no writ); see also Walker v. Koger, 131 S.W.2d 1074, 1075 (Tex. Civ. App.–Eastland 1939, writ dism’d) (stating that the subject matter of an assignment of error is some ruling or action of the court). Here, Burgess complains of Feghhi’s failure to comply with the trial court’s final order, not a decision of the trial court. Because we can review only decisions of a lower court, we are without jurisdiction to address this issue.
Burgess also asserts that under section 154.063, Feghhi was required to produce discovery immediately after the request was sent, and did not have thirty days to respond. The Texas Family Code contains no specific provisions governing discovery in a suit for modification of conservatorship, possession, access, or child support. See Tex. Fam. Code Ann. §§ 156.001-.401 (Vernon 2002 & Supp. 2006). Instead, it provides that the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification. See id. § 156.004 (Vernon 2002). Burgess filed a request for production of documents and things on June 4. Rule 196.2 states that a response to a request for production of documents must be served within thirty days after service of the request. Tex. R. Civ. P. 196.2. Thus, Feghhi’s responses were not due until July 4. Feghhi produced his responses to discovery within the time specified by Rule 196.2. Therefore, Burgess’s complaint is without merit.
Waiver of Objections
Burgess contends that Feghhi waived his objections to her discovery because they were not timely made. As noted above, Feghhi timely filed his responses to Burgess’s request for production. Further, he filed his objections timely, within the time for response. See Tex. R. Civ. P. 193.2(a). Therefore, Feghhi did not waive his discovery objections.
Failure to Produce Discovery
Rule 193.4 of the Texas Rules of Civil Procedure states that any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule. Tex. R. Civ. P. 193.4(a). A party need not request a ruling on that party’s own objection to preserve the objection. Tex. R. Civ. P. 193.4(b). On June 28, Feghhi filed responses and objections to Burgess’s June 4 request for production of documents and things. Burgess did not request a hearing on Feghhi’s objections.4 See Tex. R. Civ. P. 193.4(a). Thus, the trial court did not have an opportunity to rule on whether Feghhi’s objections were valid. See Tex. R. Civ. P. 193.4(b). Further, on the day of the final hearing, Burgess filed a pleading that contained a motion to compel documents and things. However, she did not request that the trial court set the motion for hearing, and did not obtain a ruling from the trial court on her motion. See Tex. R. Civ. P. 193.4(a), (b). Because Burgess did not obtain a ruling on Feghhi’s objections or timely file and request a hearing on a motion to compel, she waived her complaint regarding Feghhi’s failure to produce the discovery to which he objected. See Tex. R. App. P. 33.1(a)(1), (2).
Failure to Sanction Feghhi’s Attorney
We review a trial court’s decision regarding the sanction of a party under an abuse of discretion standard. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court may enter “just” sanctions for a party’s failure to comply with a discovery order or request. See id. at 839; Tex. R. Civ. P. 215.2(b). Likewise, a trial court may impose sanctions against a party who abuses the discovery process. Tex. R. Civ. P. 215.3.
Feghhi produced his income tax returns, a profit and loss statement, documentation to support his income tax returns, and copies of wire transfers showing that the house he occupied was owned by his sister. He also produced documents in response to Burgess’s requests for production. However, at the June 28 hearing, the trial court modified some of Burgess’s requests for production and determined that Burgess could not require production of documents pertaining to businesses or properties owned by third parties, specifically Feghhi’s sister and brother. Thus, the trial court did not require Feghhi to produce all of the documents Burgess requested. Because Feghhi produced the documents the trial court required, we cannot conclude that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery. See Tex. R. Civ. P. 215.2(b); Cire, 134 S.W.3d at 838.
We overrule Burgess’s issues one through nine.

Continuances (Issue 10)

Burgess contends that the trial court abused its discretion by granting continuances. Specifically, she argues that she never knew about “unwanted continuances,” and that these continuances delayed her case. We review a trial court’s decision regarding a continuance under an abuse of discretion standard. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 , 800 (Tex. 2002). A trial court has wide latitude in controlling its docket, especially regarding preliminary hearings. See Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.–Houston [1st Dist.] 1994, writ denied). According to the record, the trial court granted only one continuance, and that was regarding a preliminary hearing. On May 13, 2004, the Assistant Attorney General stated that it had not received financial information from Feghhi and had not informed Burgess of the hearing. As a result, Burgess was not present. Feghhi also had not received certain information from the Assistant Attorney General until shortly before the hearing. As a result, Feghhi’s attorney and the Assistant Attorney General stated in open court that they had agreed to a continuance on the motion to modify. Under these circumstances, we cannot conclude that the trial court abused its discretion in granting the continuance of this preliminary hearing. Further, because she was not present at the hearing, Burgess was not harmed by the trial court’s decision to grant the continuance. We overrule Burgess’s issue ten.

Bias (Issue 11)

Burgess argues that the trial court was biased against her and calls our attention to the trial court’s statement during a hearing on a motion for enforcement against Burgess.5 She also contends that the trial court denied her “fair standards of law and justice or the administration of justice” and never enforced due process protections on her behalf. Burgess claims that the trial court was not fair or impartial because she allowed Feghhi’s attorney to interrupt her, allowed Feghhi to “go first,” denied her “rules of court,” denied her the ability to present her case, and failed to exercise control.
Applicable Law
Due process requires a neutral and detached hearing body or officer. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.–Corpus Christi 1993), writ dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973)). In the absence of a clear showing to the contrary, we will presume the trial court was a neutral and detached officer. Id. (citing Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.–Dallas 1986, pet. ref'd)). The complaining party must show the judge acted improperly and that she suffered probable prejudice as a result. Rymer v. Lewis, 206 S.W.3d 732, 735-36 (Tex. App.–Dallas 2006, no pet.). In reaching our decision, we examine the entire record. Id. at 736.
Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994). Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the trial court learned from participation in the case. See in re K.L.R., 162 S.W.3d 291, 312 (Tex. App.–Tyler 2005, no pet.). A trial court has the inherent power to control the disposition of cases. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The discretion vested in the trial court over the conduct of a trial is great. Id. Further, a trial court may properly intervene to maintain control in the courtroom, expedite the trial, and to prevent what it considers to be a waste of time. Id. at 241.
Analysis
The record from the enforcement hearing shows that the Assistant Attorney General informed the trial court that the hearing involved a motion for enforcement brought by the State against Burgess. The trial court then informed Burgess that a motion for enforcement could lead to her “being in jail or being on probation which could also result in [her] going to jail.” The trial court stated that Burgess had the right to an attorney and that, if she was too poor to hire one, the court could appoint one. Burgess stated that she wanted the trial court to consider appointing her an attorney. The trial court informed Burgess that she needed to complete some paperwork for review and concluded the hearing. The trial court did not rule on the motion for enforcement, but simply informed Burgess of the consequences if the motion for enforcement was granted. See Liteky, 510 U.S. at 555, 114 S. Ct. at 1157.
At the June 28, 2004 hearing, the trial court addressed Burgess’s request for production. This eventually led to Feghhi’s attorney explaining the unusual aspects of the case, primarily involving Feghhi’s family’s problems with transferring money from Iran to the United States and how those transactions affected Feghhi’s financial documents and property records. This explanation may be what Burgess complains of as Feghhi being allowed to “go first.” After hearing arguments from Feghhi’s attorney and explanations by the Assistant Attorney General, the trial court stated that she would allow Burgess to “tell me whatever you want to tell me.” Burgess was allowed to argue, but was, admittedly, interrupted by the trial court. Most of the interruptions were a direct result of Burgess’s arguments.
In the September 8, 2004 hearing, Burgess was allowed to argue, but was interrupted by the trial court and Feghhi’s attorney regarding her allegations and arguments. She complained to the trial court that Feghhi’s attorney started the case and kept “butting in,” and also told the court that the rules of court were not what she “thought they were supposed to be.” The trial court allowed Burgess to continue her argument, which consists of approximately twenty pages of a thirty page reporter’s record. Feghhi’s attorney interrupted at least once to question documents Burgess gave to the trial court. At one point, Burgess again complained that Feghhi’s attorney was attempting to interrupt her and asked the trial court not to allow him to do so. The trial court stated that she was listening to Burgess, but that interruptions were “the way lawsuits go. Everybody gets to interrupt. It’s the way we do things.” At the end of Burgess’s argument, the trial court stated, at least twice, that Burgess was repeating the same arguments.
The record demonstrates that, contrary to Burgess’s assertions of bias and partiality, the trial court was patient, attentive, and professional. The trial court’s statements during the hearing on the motion for enforcement were merely to inform Burgess of the consequences if the motion was granted. Burgess complains about interruptions during other hearings, but these hearings were informal and involved argument only. No evidence or witnesses were presented. Further, the record indicates that the trial court exercised its broad discretion to maintain control and promote expedition of the hearings. See Dow Chem. Co., 46 S.W.3d at 241. Although Burgess complains that the trial court violated court rules, she does not specify which rules were violated, or in what manner.
Burgess also states that the trial court was biased, but she does not identify any extrajudicial source that influenced the trial court’s decision nor has she directed us to any evidence in the record from which we might conclude any such influence existed. See in re K.L.R., 162 S.W.3d at 312. Thus, in substance, she complains only of actions taken by the trial court while acting in its judicial capacity at trial. Based upon our review of the record, we conclude that Burgess has failed to make a clear showing that the trial court was biased or partial and, thus, has failed to overcome the presumption that the trial court was a neutral and detached officer. See Earley, 855 S.W.2d at 262. We overrule Burgess’s issue eleven.

New Claims (Issue 12)

Burgess contends that the trial court erred in not allowing her to “prosecute” her fraud claims. Parties may amend their pleadings and file such other pleadings as they may desire “at such time as not to operate as a surprise to the opposite party.” Tex. R. Civ. P. 63. If a pleading is offered for filing within seven days of trial or thereafter, the pleading shall be filed only after leave of court is obtained. Id. On the day of the final hearing, September 8, Burgess filed a motion to amend “the proceedings” alleging actions for fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi. Attached to the motion was a proposed petition. Burgess did not request that the trial court rule on her motion, but the court informed Burgess that she could not take up her new suit at the final hearing. See id. We construe this as a denial of Burgess’s motion.
Although Feghhi failed to object to Burgess’s motion, nothing in the record shows that he was served with a copy. Because the amendment was requested at the final hearing and the record does not show that Feghhi was served with a copy of Burgess’s motion, the trial court reasonably could have concluded that the filing of the motion operated as a surprise and denied it. See id. We overrule Burgess’s issue twelve.

Notices Pertaining to Hearings (Issues 13-14)

Burgess argues that the trial court erred or abused its discretion because she did not receive proper notices of hearings in violation of her rights of due process and equal protection. Moreover, she contends that she was not “invited” to all of the hearings in violation of fair standards of law or the administration of justice. Because she was not notified of hearings, she claims that she was denied the opportunity for discovery and right to speak and give testimony in violation of her rights of due process. Burgess also complains that Feghhi’s attorney failed to notify her that he was attending the hearings by telephone, denying her rights of due process and equal protection.
Applicable Law
An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)). Failure to give notice violates the most rudimentary demands of due process of law. Id. However, no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the appellate court concludes that the error (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).
Analysis
Although Burgess claims that she did not receive notice of all the hearings or was not “invited” to all of the hearings, the record shows that she attended all but one of the hearings.
Hearings on May 27, June 28, and September 8, 2004
According to the record, Burgess did not object to the lack of notice for the hearings that took place on May 27, June 28, or September 8, or complain that Feghhi’s attorney appeared by telephone during the September 8 hearing. By failing to object, Burgess has failed to preserve these issues for review. See Tex. R. App. P. 33.1(a)(1). Moreover, she does not explain how the lack of notice of these hearings caused the rendition of an improper judgment or prevented her from properly presenting her case to this court, particularly in light of the fact that she attended all of these hearings. See Tex. R. App. P. 44.1(a)
Hearing on May 13, 2004
Burgess did not attend the hearing held on May 13, 2004. However, the Assistant Attorney General informed the trial court that he and Feghhi’s attorney had not yet reached a settlement and that Feghhi’s attorney wanted a continuance because of scheduling problems. The Assistant Attorney General stated that he would like the case reset, particularly because he did not have Feghhi’s financial information and he had not informed the custodial parent, Burgess, of the hearing. The trial court noted that Feghhi’s attorney was not present and contacted him by telephone during the hearing. After some discussion, the Assistant Attorney General and Feghhi agreed to a continuance of the case until May 27. Feghhi also agreed to provide the requested financial information to the Attorney General and to discuss a settlement. No argument was heard or evidence presented during this hearing.
Burgess argues that because she did not receive notice of this hearing, she was denied the opportunity for discovery and the right to speak and give testimony in violation of her rights of due process. Although notice is an elementary and fundamental requirement of due process, it is a requirement only for any proceeding that “is to be accorded finality.” See Peralta, 485 U.S. at 84, 108 S. Ct. at 899. The May 13 hearing was not a final hearing – there was no argument regarding the merits of the case, there was no evidence presented during the hearing, and there was no decision regarding the outcome of the case by the trial court. Further, Burgess contends that she was prevented from conducting discovery during this hearing. However, she did not file her request for discovery from Feghhi until June 4. She also does not state how her lack of notice of this hearing probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Because the May 13 hearing was not a final hearing and Burgess failed to show how the lack of notice caused the rendition of an improper judgment, we conclude that, if the trial court erred in failing to provide notice of the May 13 hearing, the error was harmless.
We overrule Burgess’s issues thirteen and fourteen.

Witnesses (Issue 15)

Burgess argues that the trial court improperly excluded her witnesses, including S.A.B. At the June 28 hearing, the trial court observed that S.A.B. was in the courtroom. Burgess stated that she thought S.A.B. was to be sworn as a witness to testify that she had never received anything from Feghhi. The trial court stated that the courtroom was not a place for children and requested the child wait outside and be taken home. Burgess stated that S.A.B. wanted to come, but admitted telling the child that she did not believe the trial court was going to let her in the courtroom. Burgess never asked the trial court to allow S.A.B. to testify. At the September 8 hearing, Burgess’s mother attempted to speak to the trial court, but was ordered to “be quiet” because she was not in the case or before the court. According to the record, Burgess never objected that the trial court improperly excluded her witnesses. Because Burgess failed to timely object to the exclusion of her witnesses, she has waived her complaint. See Tex. R. App. P. 33.1(a)(1). We overrule Burgess’s issue fifteen.

Hearsay (Issue 16)

Burgess argues that the trial court erred in overruling her hearsay objections to Feghhi’s evidence, including his statements regarding his sister’s ownership of certain properties. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). If a party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. Tex. R. Evid. 806.
At the June 28 hearing, Feghhi presented documentation showing Feghhi’s sister’s transfer of monies. Burgess did not object to those documents during the hearing. At the September 8 hearing, after Burgess argued that she had not seen the documentation that Feghhi’s sister transferred monies to him, Burgess “objected to it” because Feghhi’s sister was not at the hearing. The trial court simply said “okay,” but did not rule on Burgess’s objection. Burgess failed to timely object to the documentation regarding Feghhi’s sister’s transfer of monies, allowing these documents to be presented at the June 28 hearing without objection. She also failed to obtain a ruling on her objection during the September 8 hearing. By failing to timely object or obtain a ruling on her objection, she has waived this issue for review. See Tex. R. App. P. 33.1(a)(1), (2)(A). We overrule Burgess’s issue sixteen.

Credibility of Witnesses (Issue 17)

Burgess argues that the trial court abused its discretion when it believed Feghhi’s testimony and evidence regarding his financial status and ability to pay child support because it was false, misleading, and fraudulent. In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). The court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Although Burgess argues that Feghhi’s testimony and evidence was false, misleading, and fraudulent, the record contains only the reporter’s records of the hearings and no exhibits that were admitted during the hearings. Burgess has attached a large volume of documents to her brief. However, we must determine a case on the record as filed, and may not consider documents attached as exhibits to an appellate brief. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1st Dist.] 1999, no pet.).
Because the trial court was the exclusive judge of Feghhi’s credibility and Burgess has presented us with nothing but the reporter’s records without exhibits, we cannot conclude that the trial court abused its discretion by believing Feghhi’s testimony and evidence regarding his financial status and ability to pay child support. We overrule Burgess’s issue seventeen.

Exclusion of Evidence (Issue 18)

Burgess also contends that the trial court improperly excluded her evidence. We review a trial court’s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. The burden is on the complaining party to present a sufficient record to the appellate court to show error requiring reversal. Est. of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.–Houston [1st Dist.] 1995, writ denied). Although Burgess complains that the trial court excluded her evidence, the record does not show what evidence was excluded by the trial court. The trial court accepted a box of unidentified documents on September 8 and agreed to examine them in making its ruling, but it did not admit these documents into evidence. Because Burgess did not present a bill of review on these documents, we have nothing to review. We overrule Burgess’s issue eighteen.

Retroactive Child Support (Issue 19)

Burgess argues that the trial court should have determined Feghhi’s child support from the date of his fraud or from the date of filing the motion to modify. A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam. Code Ann. § 156.401(b) (Vernon 2002). Thus, the trial court had no authority to modify child support from the date of Feghhi’s alleged fraud or from the date the motion to modify was filed. Further, the motion to modify did not ask for retroactive child support. Thus, the trial court did not err in refusing to grant child support before the date of service of citation. We overrule Burgess’s issue nineteen.

Modification of Child Support (Issues 20-26)

Burgess contends that the trial court abused its discretion by excluding other sources of income including deemed income, bank accounts, businesses, properties, and Feghhi’s wife’s income taxes in determining Feghhi’s monthly net resources and, thus, his child support. She also argues that Feghhi misrepresented his income taxes. Further, she contends that the trial court abused its discretion in determining the number of children before the court and the percentage of his income to be paid as child support. She also contends that the trial court abused its discretion when it failed to consider additional factors in determining child support, and that the trial court did not consider the best interests of the child. Finally, she argues that the trial court should have ordered child support beyond the child’s eighteenth birthday.
Standard of Review
A court’s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d). The test for abuse of discretion is whether the trial court acted without reference to any governing rules or principles. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313. In other words, the issue is whether the trial court’s actions were arbitrary or unreasonable. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313.
Under the abuse of discretion standard, legal and factual insufficiency of the evidence are not independent reversible grounds, but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P., 98 S.W.3d at 313; Farish v. Farish, 921 S.W.2d 538, 542 (Tex. App.–Beaumont 1996, no writ). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.–Houston [1st Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App.–San Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.

Applicable Law

A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition. Tex. Fam. Code § 156.401(a)(1) (Vernon 2002). A child support order also may be modified if it has been three years since the order was rendered or last modified and the monthly amount of the child support award differs by either twenty percent or one hundred dollars from the amount that would be awarded in accordance with child support guidelines. Id. § 156.401(a)(2). In determining whether the circumstances of the child or a person affected by the order have materially and substantially changed, evidence regarding the parents’ or child’s financial circumstances and needs at the time of divorce and the time of modification should be considered by the trial court. Farish, 921 S.W.2d at 541; In re Striegler, 915 S.W.2d 629, 635 (Tex. App.–Amarillo 1996, writ denied). The amount of a child support order established by the child support guidelines is presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122 (a) (Vernon 2002).
Under the Texas Family Code, net resources for calculating child support include all wage and salary income and other compensation for personal services, including commissions, overtime pay, tips, bonuses, and all other income actually being received, including gifts and prizes. Id. § 156.062(a), (b)(1), (5) (Vernon 2002). The duty to support a child is not limited to a parent’s ability to pay from current earnings, but also extends to his financial ability to pay from any and all sources that might be available. In re Striegler, 915 S.W.2d at 638; Roosth v. Roosth, 889 S.W.2d 445, 455 (Tex. App.–Houston [14th Dist.] 1994, writ denied); Musick v. Musick, 590 S.W.2d 582, 586 (Tex. Civ. App.–Tyler 1979, no writ).
Analysis
Regarding child support, we note that the reporter’s record contains only argument and does not include any exhibits admitted into evidence. Although the trial court agreed to take a box of documents that Burgess referred to during the September 8 hearing, these documents were not identified during the hearing or admitted into evidence and are not included in the record on appeal. Further, the record contains little or no testimony regarding the amount of income reflected by Feghhi’s tax returns or the profit and loss statement that he produced during trial. Although Burgess attached a number of documents to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733.
Regarding her contention that the trial court excluded deemed income, a court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002). However, Burgess does not argue that the trial court failed to assign income to assets that do not currently produce income, but that the trial court excluded certain sources of income in determining Feghhi’s child support. Nonetheless, the burden is on Burgess to present a sufficient record to the appellate court to show error requiring reversal. Aguero v. Aguero, 225 S.W.3d 236, 238 (Tex. App.–El Paso 2006, no pet.). As noted above, the reporter’s record contains only argument. Thus, we cannot determine what sources of income were excluded by the trial court. Because Burgess has not presented a record sufficient to show that the trial court excluded other sources of Fegghi’s income or that Feghhi misrepresented his income taxes, she has waived the issue. See id.
Burgess further contends that the trial court abused its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. Under the alternative method of computing support for children in more than one household, an obligor who has one child before the court and two children for whom he has a duty of support should pay sixteen percent of his net resources for child support. Tex. Fam. Code Ann. §154.129 (Vernon 2002). In the final order, the trial court found that the percentage applied to his net resources for child support was sixteen percent and that there was one child before the court, but that there were two children not before the court residing in the same household as Feghhi. The record supports the trial court’s finding that Feghhi had two other children to support. The order of child support regarding the amount of children and the percentage applied to Feghhi’s net resources conformed to the child support guidelines. Therefore, we conclude that the trial court did not abuse its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. See id. §§ 154.122 (a), 154.129.
Burgess also complains that the trial court abused its discretion when it failed to consider additional factors in determining child support. Under a liberal construction of Burgess’s argument, we conclude that she is referring to section 154.123 of the Texas Family Code. Section 154.123 states that a court may order child support payments in an amount other than that established by the child support guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. See id. § 154.123(a) (Vernon 2002). To determine whether application of the child support guidelines would be unjust or inappropriate under the circumstances, a court shall consider evidence of all relevant factors including, among others, the age and needs of the child, the ability of the parents to contribute to the support of the child, any financial resources available for the support of the child, the amount of the obligee’s net resources, provision for health care insurance and payment of uninsured medical expenses, special or extraordinary educational, health care, or other expenses of the parties or of the child, positive or negative cash flow from any real and personal property and assets, including a business and investments, and any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. See id. § 154.123(b).
According to the record, Burgess did not object that the trial court refused to consider these additional factors when it determined child support. Instead, she argued that Feghhi’s monthly net resources exceeded $6,000 and that the trial court should award child support based on that amount. The grounds asserted on appeal must comport with the objection at trial. Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.–Amarillo 2002, no pet.). An objection at trial that is not the same as the issue urged on appeal presents nothing for appellate review. Scurlock Permian Corp. v. Brazos Cty., 869 S.W.2d 478, 484 (Tex. App.–Houston [1st Dist.] 1993, writ denied). Because Burgess’s argument on appeal does not conform to her complaint during trial, she has waived this issue. See id.
Burgess also argues that the trial court did not consider the best interest of the child. However, the order of support conformed to the guidelines and, thus, was presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122. Moreover, in the final order, the trial court found that its order was in the best interest of the child. Burgess did not provide any argument or citations to the record to demonstrate how the child support order was not in the best interest of the child. Her argument consisted only of conclusory statements that the trial court failed to consider the child’s best interest. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. See Tex. R. App. P. 38.1(h).
Finally, Burgess argues that the trial court should have ordered child support beyond S.A.B.’s eighteenth birthday because she had continuing dental problems and Feghhi denied her medical insurance in the past. According to the Texas Family Code, a court may order child support until the child is 18 years of age or until graduation from high school, whichever occurs later or, if the child is disabled as defined in the statute, for an indefinite period. Tex. Fam. Code Ann. § 154.001(a) (Vernon 2002). Burgess does not argue that S.A.B. is under eighteen years of age, is still in high school, or is disabled. Therefore, the trial court did not abuse its discretion when it failed to order child support beyond the time limits imposed by the family code.
We overrule Burgess’s issues twenty through twenty-six.

Other Issues (Issues 27-37)

Burgess presents eleven other issues in her brief. More specifically, she argues as follows:

27. She should receive a new judge and reasonable accommodations and modifications under the Americans with Disabilities Act based upon her disability, which she characterized as an inability to focus;

28. Feghhi should pay for an attorney for S.A.B. and for the costs of the appeal;

29. The Attorney General should be ordered to perform a Financial Information Data Match on Feghhi and his family;

30. Feghhi was in contempt of the order in the suit for modification of child support because he failed to pay child support and provide medical insurance. She requests that Feghhi be placed on probation and be ordered to reimburse Burgess for those medical expenses;

31. We should determine Feghhi’s ability to pay child support and the amount of child support because of the untimeliness of this case. She specifically complains about the delays in the case;

32. The trial court erred or abused its discretion in failing to hold a hearing on her motion to compel;

33. Feghhi should be ordered to produce responses to her discovery because he failed to object;

34. Feghhi’s attorney should return the “lost papers”;

35. We should order that she receive a jury trial;

36. She was unfairly deprived of notice of all motions and pleadings in violation of her “rights”; and that

37. Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources.

Burgess has waived issues twenty-seven, twenty-eight, and twenty-nine because she did not complain during trial by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion with the trial court regarding Feghhi’s failure to comply with the order in the suit for modification of child support, she has waived issue thirty. See Tex. R. App. P. 33.1(a)(1). Burgess failed to object to the delays at trial and, thus, she has waived issue thirty-one. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion or request a hearing on her motion to compel, she has waived issue thirty-two. See Tex. R. App. P. 33.1(a)(1), (2).
Regarding issue thirty-three, we have already determined that Feghhi timely objected to Burgess’s discovery requests and that, although Burgess filed a motion to compel after the final hearing, she never requested that the motion be set for hearing, and did not obtain a ruling on her motion from the trial court. Because Burgess did not file a timely motion to compel or obtain a ruling on Feghhi’s objections, she has waived issue thirty-three. See Tex. R. App. P. 33.1(a)(1), (2). Regarding issue thirty-four, Burgess filed a motion on September 23, 2004 requesting that certain unspecified “lost papers” be returned. However, she did not request that the motion be set for a hearing and did not receive a ruling on her motion from the trial court. Because Burgess did not obtain a ruling on her motion, she has waived issue thirty-four. See Tex. R. App. P. 33.1(a)(1), (2). Even if she had obtained a ruling, however, we are unable to locate any authority permitting an appeal of such an order.
Regarding issue thirty-five, according to the Texas Family Code, a party may demand a jury trial except that the court may not submit to the jury questions on the issues of child support. Tex. Fam. Code Ann. § 105.002(a), (c)(2)(A) (Vernon 2002). Because this suit involved child support issues only, Burgess was not entitled to a jury trial. Thus, her complaint is without merit. Even if Burgess were entitled to a jury trial, the result would not change. According to Rule 216 of the Texas Rules of Civil Procedure, 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 not less than thirty days in advance of the date set for trial on the nonjury docket. Tex. R. Civ. P. 216(a). Had Burgess been entitled to a jury trial, by failing to request a jury trial thirty days in advance of the final hearing, she would have waived the issue.
Regarding issue thirty-six, Burgess did not provide any argument or citations to the record identifying the motions and pleadings she did not receive. Her argument consisted only of a conclusory statement that she did not receive notice of all motions and pleadings. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. We overrule Burgess’s issue thirty-six. See Tex. R. App. P. 38.1(h).
Finally, regarding issue thirty-seven, it is Burgess’s burden to present a sufficient record to the appellate court to show error requiring reversal. See Aguero, 225 S.W.3d at 238. The record contains only arguments and does not include any exhibits admitted into evidence. Although Burgess points to documents attached to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733. Because Burgess has not provided a record sufficient to show that Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources, she has waived this issue. See Aguero, 225 S.W.3d at 238.
We overrule Burgess’s issues twenty-seven through thirty-seven.

Disposition

The judgment of the trial court is affirmed. All pending motions are overruled.

BRIAN HOYLE
Justice

Opinion delivered July 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 We have liberally construed Burgess’s brief in order to give effect to her arguments. See Tex. R. App. P. 38.9. Under such a construction, we have determined that Burgess has raised thirty-seven issues.
2 The record does not contain any written orders requiring Feghhi to produce certain discovery. Nor did the trial court identify on the record which of Burgess’s discovery requests it considered proper. We cannot verify what discovery the trial court required Feghhi to produce and, thus, we rely on Feghhi’s uncontroverted statements to the trial court about the substance of its discovery orders.
3 Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with Rule 190.3 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 190.3(a).
4 The trial court reviewed Burgess’s discovery requests at the June 28 hearing. However, Feghhi filed his responses and objections after the hearing.
5 The hearing on the motion for enforcement against Burgess was brief, and the State did not explain the subject matter of the motion. Further, the motion for enforcement is not a part of the clerk’s record.

Nonparent SAPCR & Sanctions: In re Michelle Moore (Tex. Aug. 31, 2007)

2007-09-02T20:22:00.000-07:00

Texas Supreme Court grants mandamus relief and vacates sanctions awarded by court of appeals against grandmother who battled mother for custody of grandchild. Grandparent asserted standing based on six months of actual possession.

In re Michelle Moore

═══════════════════════
On Petition for Writ of Mandamus
═══════════════════════

PER CURIAM

Michelle Moore and Lisa Denise Santos have been opposing parties in a series of lawsuits and original proceedings relating to custody of I.E.T., Santos’s child. In all three suits, Moore, the child’s alleged paternal grandmother, was awarded possession or joint conservatorship of the child at the trial court level, although those decisions were later reversed by the court of appeals.

Ultimately, the court of appeals awarded custody to Santos and ordered Moore to pay Santos $47,178.50 for her attorney’s fees and costs in the various proceedings as a sanction. We hold that the court of appeals abused its discretion by imposing sanctions against Moore under the facts presented, and conditionally grant the writ of mandamus.

On December 12, 2004, Santos gave birth to I.E.T. Although Santos was married to another man, she had been living with Moore’s son. Santos and I.E.T. initially moved in with Moore. Ten days after I.E.T.’s birth, Moore filed a Suit Affecting Parent-Child Relationship (“SAPCR1”), in the 94th District Court of Nueces County, claiming to be I.E.T.’s paternal grandmother. The trial court issued a temporary restraining order preventing Santos from removing I.E.T. from Moore’s possession and on January 18, 2005, granted temporary custody of I.E.T. to Moore. Approximately two and a half months after her birth, I.E.T. was diagnosed with a disorder that required her to be fed through a nasogastric tube and necessitated a complex medical regime, which Moore was trained to administer.

On May 26, 2005, Santos filed a petition for writ of mandamus in the court of appeals, alleging Moore lacked standing to bring SAPCR1. On June 16th, the court granted the writ, holding that Moore lacked standing because she was not listed in the Texas Family Code as a party who could initiate a SAPCR. The court ordered the district court to dismiss the suit for lack of jurisdiction. In its memorandum opinion, the court denied Santos’s request to order a hearing in the trial court on Santos’s motion for attorney’s fees and sanctions, holding that Moore was entitled to a presumption of good faith and that there was no evidence of bad faith or harassment. Despite the ruling, Moore refused to give up possession of I.E.T.

The next day, Santos filed suit (“Santos’s suit”), requesting that the 214th District Court of Nueces County grant a writ of habeas corpus for possession of I.E.T. Three days later, Moore filed suit in the 319th District Court (“SAPCR2”), alleging standing under the Texas Family Code as a person in possession of the child for at least six months, a different basis than in SAPCR1. In Santos’s suit, the trial court denied Santos habeas corpus relief and issued an interim order transferring the proceedings to the 319th District Court, while in SAPCR2, the trial court issued a temporary restraining order preventing Santos from removing I.E.T. from Moore’s possession.

On July 8, 2005, Santos again filed a petition for writ of mandamus in the court of appeals, this time with regard to the orders issued in SAPCR2. A little more than a month later, Santos filed another petition for writ of mandamus in the court of appeals challenging the orders issued in Santos’s suit. On August 29, 2005, the court of appeals granted both writs and ordered both trial courts to vacate their orders. The court dismissed SAPCR2 for lack of jurisdiction and granted the writ of habeas corpus in Santos’s suit, giving possession of I.E.T. to Santos. Moore surrendered custody.

The court of appeals also ordered Moore to pay Santos’s court costs and attorney’s fees incurred in SAPCR1, Santos’s suit, and SAPCR2. The court noted:

[G]iven that relator’s expenses in having to retain counsel and file pleadings in multiple courts have been solely caused by Moore’s intransigence and disregard for the previous judgment of this Court, we order that Moore pay all of relator’s court costs and attorneys fees incurred for Cause Nos. 04-07301-C, 05-03094-G and 05-3089-F.

The court cited Texas Rule of Appellate Procedure 43.6 in support of its ruling.

On September 1, 2005, Moore filed a petition for writ of mandamus in this Court requesting that we vacate all of the orders entered by the court of appeals. We denied the petition without issuing an opinion. On May 4, 2006, Santos filed in the court of appeals a Motion Requesting Order for Payment of Attorney Fees as Sanctions against the Real Party in Interest. The court granted the motion on June 22, 2006, issuing an order for Moore to pay Santos $47,178.50 for her attorney’s fees and costs at both the trial and appellate level. In response, Moore filed this petition requesting that we order the court of appeals to withdraw its sanctions order and award.

Moore argues that neither Texas Rule of Appellate Procedure 43.6 nor any statute authorizes the imposition of sanctions by a court of appeals. Moore further contends that only trial courts have the inherent authority to issue sanctions in the form of attorney’s fees, arguing that courts of appeals lack that inherent authority due to their limited original jurisdiction. Santos contends the sanctions order was issued under the court of appeals’ inherent authority, with further authority found in Rule 43.6. In addition, Santos argues that there is no indication that the court of appeals imposed the order as a sanction.

We disagree with the latter contention. The order awarding the fees and costs specifically granted Santos’s motion requesting their payment as a sanction. Moreover, the language in the court of appeals’ opinion leaves no doubt that the court imposed the fees and costs to penalize Moore for filing SAPCR2 after it had found that she lacked standing in SAPCR1.

Assuming without deciding that the court of appeals had the authority to issue the sanctions order, we conclude the court nonetheless abused its discretion in doing so. In imposing the sanctions, the court failed to acknowledge that Moore, by having constant physical custody of I.E.T. for six months, alleged standing on a different ground in SAPCR2. Thus, Moore did not act inconsistently with the court of appeals’ standing ruling in SAPCR1 in filing SAPCR2.

Moreover, the court of appeals’ characterization of Moore’s conduct as “intransigence” is unfounded given that she at all times subjected herself and I.E.T. to the jurisdiction of the trial courts, sought their decisions, and followed their rulings. The trial courts declined to remove I.E.T. from Moore’s custody. Accordingly, there is no basis for the court of appeals’ imposition of sanctions on the record before us.

Without hearing oral argument, we hold that the court of appeals abused its discretion in issuing sanctions against Moore, and conditionally grant the writ of mandamus. Tex. R. App. P. 52.8. The writ will issue only if the court of appeals fails to vacate its orders of August 29, 2005 and June 22, 2006 regarding Santos’s court costs and attorney’s fees.

Opinion Delivered: August 31, 2007

Texas Supreme Court Cause No. 06-0544 IN RE MICHELLE MOORE; from Nueces County; 13th district (13‑05‑00428‑CV&13‑05‑00523‑CV, ___ SW3d ___, 08‑29‑05) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion

Default divorce decree based on citation by publication reversed as procedurally deficient - no statement of evidence in the record

2007-08-27T21:14:00.000-07:00

Peggy S. Jones v. Dennis L. Jones, No. (Tex.App.- Beaumont, Aug. 16, 2007)(default judgment, no answer, citation by publication)(Opinion by Justice Kreger)(Before Chief Justice McKeithen, Justices Gaultney and Kreger)

On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 26,884

MEMORANDUM OPINION

In this restricted appeal, Peggy Jones appeals a divorce decree entered by default in Jasper County in favor of appellee Dennis Jones. Peggy asserts the trial court erred in granting the default judgment where citation was by publication and no statement of evidence was filed as part of the record. We reverse and remand.

Dennis filed a pro se petition for divorce listing a specific residence for Peggy in Louisiana. His petition includes a request that citation and notice issue as required by law. Six days later, he filed an "Affidavit for Citation by Publication" stating Peggy's residence was unknown to him and that he exercised due diligence to locate her, but was unable to do so. The trial court approved Dennis's request for citation by publication. (1) The record includes the Jasper County District Clerk's return stating that the citation was posted in the Jasper County Courthouse. The record also includes an affidavit by the publisher of The Jasper Newsboy, stating that The Jasper Newsboy included the citation in its publication for a consecutive week. Peggy did not file an answer. On January 20, 2006, the trial court entered by default a final divorce decree. On June 1, 2006, Peggy filed her Notice of Restricted Appeal.

To successfully attack a default judgment by restricted appeal, an appellant must (1) file notice of the appeal within six months after the final judgment is signed; (2) be a party to the suit; (3) not have participated at trial; and (4) show error apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004). No presumptions are made in favor of valid service in a restricted appeal from a default judgment. Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848, 850 (Tex. 2007).

Error on the face of the record is the only element at issue in this appeal. Peggy contends that error is apparent on the face of the record because of the trial court's failure to approve, sign, and file a statement of evidence as required by section 6.409 of the Texas Family Code. See Tex. Fam. Code Ann. § 6.409 (Vernon 2006). She argues that absent a statement of evidence, she is unable to confirm that the trial court inquired into the sufficiency of the diligence exercised in attempting to ascertain, for service purposes, her whereabouts. Section 6.409 governs citation by publication in divorce cases and provides the following:

§ 6.409 Citation by Publication

(a) Citation in a suit for dissolution of a marriage may be by publication as in other civil cases, except that notice shall be published one time only.
. . . .
(e) If the petition or the petitioner's attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as part of the record. Id.

Because section 6.409(a) states that citation in a divorce suit may be by publication "as in other civil cases, except that notice shall be published one time only[,]" we also consider Texas Rule of Civil Procedure 244 which applies where citation is made by publication. See Tex. R. Civ. P. 244. Rule 244 has a requirement similar to section 6.409(e)'s "statement of evidence" requirement where service has been made by publication and the defendant has failed to appear:

Where service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other cases; but, in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs. Tex. R. Civ. P. 244.

In essence, Rule 244 provides two procedural safeguards where service has been made by publication and no answer has been filed or appearance made: (1) the trial court must appoint an attorney to defend the suit and (2) a statement of the evidence, approved and signed by the judge, must be filed as part of the record. See id.

Peggy argues the second sentence in section 6.409(e) of the Texas Family Code applies here. We agree. Although the petition states there are no children under 18 born or adopted by the spouses, there is no oath "that no appreciable amount of property was accumulated by the spouses during the marriage," and the petition sets out marital property to be divided by the court. Because service was made by publication, Peggy failed to answer, and there is no oath described above, the trial court was required under section 6.409(e) and Rule 244 to (1) appoint an attorney on Peggy's behalf to defend her suit and (2) approve and sign a statement of evidence to be filed as part of the record. See Tex. R. Civ. P. 244; Tex. Fam. Code Ann. § 6.409(e). As with court decisions requiring compliance with Rule 244's requirements, we find failure to comply with either of these requirements under section 6.409(e) constitutes reversible error. See Montgomery v. R.E.C. Interests, Inc., 130 S.W.3d 444, 447 (Tex. App.--Texarkana 2004, no pet.); Isaac v. Westheimer Colony Ass'n, 933 S.W.2d 588, 591 (Tex. App.--Houston [1st Dist.] 1996, writ denied); Albin v. Tyler Prod. Credit Ass'n, 618 S.W.2d 96, 98 (Tex. Civ. App.--Tyler 1981, no writ); McCarthy v. Jesperson, 527 S.W.2d 825, 826 (Tex. Civ. App.--El Paso 1975, no writ); Villegas v. Shane-Michael Optical Co., 443 S.W.2d 571, 572 (Tex. Civ. App.--El Paso 1969, writ dism'd by agr.).

Because the record in this case does not contain a statement of the evidence as required by Rule 244 and section 6.409(e), the record contains error on its face and we sustain Peggy's sole issue on appeal. The trial court's decision probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1. The judgment of the trial court is reversed and the cause remanded for new trial.

REVERSED AND REMANDED.
__________________________________
CHARLES KREGER
Justice
Submitted on February 23, 2007
Opinion Delivered August 16, 2007

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

1. See Tex. R. Civ. P. 109.

Is an indigent defendant in a domestic violence protective order case entitled to appointed counsel?

2007-08-27T21:04:00.000-07:00

Amarillo Court of Appeals sends case back to the trial court to provide answer, abates appeal.

Damon Cox v. Angie Simmons, No. (Tex.App.- Amarillo, Aug. 22, 2007)(Per Curiam)(Before Justices Campbell, Hancock and Pirtle)(family violence, protective order, IFP, appointment of counsel)
Appeal from County Court of Gray County

FROM THE COUNTY COURT OF GRAY COUNTY;
NO. 4585; HONORABLE RICHARD D. PEET, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

Appellant, Damon Cox, proceeding pro se, appeals the entry of a Family Violence Protective Order issued pursuant to Chapter 85 of the Texas Family Code on application of Appellee, Angela Simmons. (1) Pending before this Court is Cox's "Notice of Extinuating (sic) Circumstances and Case History," wherein he requests the appointment of counsel to "handle any further proceedings in this matter." (2)

Whether an indigent appellant is entitled to appointed counsel to prosecute an appeal concerning the rendition of a family violence protection order has not yet been decided by the courts of this State. The issue was discussed, however, in Striedel v. Striedel, 15 S.W.3d 163, 167 (Tex.App.-Corpus Christi 2000, no pet.), wherein the appellate court reversed the entry of a protection order on grounds unrelated to the appointment of counsel. In that case the court expressed concern regarding the trial court's failure to consider appointment of counsel for the appellant upon his filing of an affidavit of indigency. The court recommended that in the event of a retrial, the trial court "give additional consideration to appellant's right to appointed counsel." Id.

In arriving at its recommendation, the Corpus Christi Court of Appeals discussed the factors set out in Lassiter v. Department of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 27-33, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In determining when the right to appointed counsel may be invoked in a civil proceeding, the Supreme Court balanced the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), against the general presumption that there is a right to appointed counsel only in those situations where the indigent, if unsuccessful, may lose his personal freedom. Lassiter, 452 U.S. at 27. Those factors include: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of a private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The Legislature vests a district judge with discretion to appoint counsel to a civil litigant who makes an affidavit that he is too poor to employ counsel. Tex. Gov't Code Ann. § 24.016 (Vernon 2004). The Supreme Court has recognized that in some exceptional cases, considering the public and private interests at stake, the effective administration of justice is best served by appointing counsel to represent an indigent civil litigant. See Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). See also Knie v. Piskun, 23 S.W.3d 455, 461 (Tex.App.-Amarillo 2000, pet. denied).

Where incarceration is a possible result of a contempt proceeding, an indigent respondent is entitled to the appointment of counsel. See Tex. Fam. Code Ann. § 157.163(b) (Vernon 2002). See also Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997); Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (applying former § 14.32(f)). When the issue of indigency is raised, the trial court is obligated to inform the respondent of that right. Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.-Dallas 1988, no writ). Additionally, unless such advice is given, a party's failure to request counsel is not a waiver of his constitutional right to assistance of counsel. Id.

Furthermore, in a suit brought by a governmental entity to terminate parental rights of an indigent parent, that parent has a statutory right to appointed counsel. See Tex. Fam. Code. Ann. § 107.013(a)(1) (Vernon Supp. 2006). See also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Additionally, juveniles who may be found to be delinquent and subjected to loss of liberty also have the right to appointed counsel. See In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re D.A.S., 973 S.W.2d 296, 298 (Tex. 1998); Matter of R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.-El Paso 1997, no writ). The Legislature has mandated that indigent juveniles receive the assistance of appointed counsel on appeal. Tex. Fam. Code Ann. §§ 51.10(f)(2) and 56.01(d)(3) (Vernon 2002 & Supp. 2006).

An application for court-ordered mental health services also triggers the appointment of counsel for a proposed patient. Tex. Health & Safety Code Ann. § 574.003(a) (Vernon 2003). This Court, relying on Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), noted that in mental health proceedings, the State undertakes to act in parens patriae, thereby imposing on the State a duty to accord due process, which necessarily includes the duty to ensure that a person subjected to such proceedings is afforded the opportunity of legal counsel at every step therein, including on appeal. State for Best Interest & Protection of Ortiz, 640 S.W.2d 67 (Tex.App.-Amarilllo 1982, no writ).

Ultimately, the decision on whether due process requires the appointment of counsel for an indigent party to a proceeding involving a family violence protective order is a matter for the trial court to determine in its discretion on a case by case basis. That determination would, of course, be subject to appellate review. Therefore, we abate this appeal and remand the cause to the trial court to utilize whatever means it finds necessary to determine:

(1) whether Cox is indigent; and
(2) whether, based on the authorities cited herein, Cox should be afforded the assistance of appointed counsel in prosecuting this appeal.

The trial court shall enter an order either granting or denying Cox's request for appointment of counsel. If counsel is appointed to represent Cox, counsel's name, address, telephone number, and state bar number shall be provided to the Clerk of this Court. The trial court's order shall be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before Monday, September 17, 2007. Pending the filing of the supplemental clerk's record, or until further order of this Court, all appellate deadlines are suspended.

It is so ordered.

Per Curiam

1. Section 81.009 of the Texas Family Code permits an appeal from the rendition of a protective order.
2. Cox notes that his attorney of record appointed to handle allegations concerning the violation of the protective order is Joshua Woodburn.

DFPS concedes that judge had no authority to transfer venue in SAPCR suit - Amarillo Court of Appeals issues mandamus

2007-08-27T20:55:00.000-07:00

In Re Lisa Gore and Glenn Alan Gore, Relator, No. (Tex.App.- Amarillo, Aug. 23, 2007)(Opinion by Justice Pirtle)(SAPCR venue mandmaus)(Before Chief Justice Quinn, Justices Hancock and Pirtle)
Appeal from of County

ON PETITION FOR WRIT OF MANDAMUS

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

In this original proceeding, Relators, Lisa Gore and Glenn Alan Gore, seek to have this Court issue a writ of mandamus commanding the Honorable Robert W. Kinkaid, Jr., presiding judge of the 64th District Court, to rescind the Order Transferring Suit Affecting the Parent-Child Relationship (SAPCR), entered by the trial court on June 12, 2007, in the underlying SAPCR action. The Texas Department of Family and Protective Services (hereinafter the Department) has candidly filed a response wherein it acknowledges that it has been unable to find any "authority or argument to controvert the allegations and arguments set forth in Relators' Petition for Writ of Mandamus." We conditionally grant Relators' petition.

Background

The underlying SAPCR action was originally filed by the Department in 1999. The original court of continuing jurisdiction was the 320th District Court in and for Potter County, Texas. In that action, the Department was named managing conservator of the minor child, Tykaier Gardner, and the Department subsequently placed the child in the foster care of Relators, Lisa and Glenn Gore. After the child had lived in their home for more than six years, on June 19, 2006, Relators filed a petition seeking termination of the parent-child relationship between the child and her parents. The petition was originally filed in the 320th District Court of Potter County; however, it was subsequently transferred to the 64th District Court of Swisher County by order dated November 3, 2006. At the time the case was transferred from Potter County to Swisher County, the child the subject of the proceeding had resided in Swisher County for more than six years and the Department and the attorney ad litem for the child agreed to the transfer. The Department later sought a discretionary transfer of the case back to the 320th District Court and on June 12, 2007, Respondent, the Honorable Robert W. Kinkaid, Jr., entered an order granting the Department's motion. Relators opposed the entry of that order and now seek to have this Court compel Respondent to rescind that order.

Standard of Review

A writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal, and the relators have the burden to present the appellate court with a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding); See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).

Transfer of a SAPCR action to a county where the child has resided for more than six months is a mandatory ministerial duty under § 155.201(b) of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding); In re Leder, __S.W.3d__, 2007 WL 1953877, at *2 (Tex.App.-Houston [1st Dist.] July 6, 2007) (orig. proceeding). Mandamus relief is available to compel the mandatory transfer of a SAPCR action. Proffer, 734 S.W.2d at 672.

Because it was undisputed that the child the subject of the underlying SAPCR action had resided in Swisher County more than six months, Swisher County was the only county of proper venue and the case should not have been transferred based upon a motion for discretionary transfer. Mandamus is the proper remedy to complain of an erroneous or improper transfer once the transferring court has lost its plenary power over the case. Proffer, 757 S.W.2d at 673. Based upon the above and foregoing, we find that Respondent abused his discretion by granting the Department's motion to transfer venue to Potter County. Accordingly, Relators' Petition for Writ of Mandamus is conditionally granted and Respondent is directed to rescind the June 12, 2007 order transferring venue to Potter County. Because we are confident that Respondent will enter an order effectively rescinding that order, the writ will issue only if he fails to do so.

Patrick A. Pirtle
Justice

Pro Se: He who represents himself has a lously lawyer for counsel and a fool for a client

2007-08-27T20:37:00.000-07:00

In the Interest of Y. L. C., a Minor Child, No. (Tex.App.- Texarkana, Aug. 24, 2007)(Opinion by Chief Justice Morriss)(Before Chief Justice Morriss, Justices Carter and Moseley)
Appeal from 354th District Court of Hunt County, Trial Court No. 62078
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Before January 29, 2007, Y.L.C.'s joint managing conservators were Debbie Truss (Y.L.C.'s maternal grandmother) and Truss' husband, William Godfrey; joint possessory conservators were Y.L.C.'s parents, Linda Ivie and Derick Clark. On that date, in an order agreed to by Ivie and Truss--but not Clark--Ivie was appointed Y.L.C.'s sole managing conservator.

The order found that Clark had made a general appearance in the suit but had defaulted by not appearing at trial. (1) The order also recited that a record of testimony was reported by a court reporter. While we have a clerk's record, no reporter's record has been filed with this Court. Clark, pro se, appeals.

We affirm the trial court's order because we hold that (1) refusing to appoint counsel for Clark was not an abuse of discretion, (2) overruling Clark's motion for continuance was not an abuse of discretion, (3) without a reporter's record, we must assume the evidence supports the trial court's order, (4) Clark's generic assertion that the trial court failed to "properly file" his motions and letters does not adequately present any issue for appellate review, and (5) Clark's generic assertion that the trial court erred in not enforcing prior orders does not adequately present any issue for appellate review.

(1) Refusing to Appoint Counsel for Clark Was Not an Abuse of Discretion

On appeal, Clark asserts that, because he was indigent, the trial court was obligated to appoint counsel to represent him in this matter. (2) We disagree.

We review the trial court's failure to appoint trial counsel in a civil case for an abuse of discretion under Section 24.016 of the Texas Government Code. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003).

While statutory authority allows a district judge to appoint counsel for indigent litigants, generally, (3) a civil litigant has no general constitutional right to appointed counsel. (4) See Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.).

In some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).

However, as the court applied the review standard in Gibson, the existence of extraordinary circumstances required to authorize such appointment is a fact-based question that is best answered in connection with each specific case. (5) On this record, we cannot conclude that this, a child custody determination, is so extraordinary that it requires the appointment of counsel or that the trial court abused its discretion by failing to make such an appointment.
We overrule this contention of error.

(2) Overruling Clark's Motion for Continuance Was Not an Abuse of Discretion

Clark also contends the trial court erred by not granting his motion for continuance. He does not specify the document to which he refers, though there are a few candidates. In a letter to the trial court filed September 19, 2005, Clark refers to a letter to the attorney general requesting a continuance. There is a motion to continue the case in order to appoint a guardian ad litem for Y.L.C. A fax was transmitted and filed January 29, 2007, in which Clark stated he was unable to appear in court on that day.

None of those documents could be clearly considered as a motion to continue the case. Thus, the trial court could not err by failing to do so. Even if there were such a motion, we review the denial of a motion for continuance for an abuse of discretion. Apodaca v. Rios, 163 S.W.3d 297, 301 (Tex. App.--El Paso 2005, no pet.). A trial court abuses its discretion when it makes a decision without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See Tex. R. Civ. P. 251; Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.--Houston [1st Dist.] 1994, no writ). None of the documents that have any possible relationship to a continuance are either verified or supported by affidavit--thus, the trial court did not abuse its discretion by failing to continue the case. See Serrano v. Ryan's Crossing Apartments, No. 08-05-00325-CV, 2007 WL 1575527 (Tex. App.--El Paso May 31, 2007, no pet.); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.--Fort Worth 1999, pet. denied).
We overrule this contention of error.

(3) Without a Reporter's Record, We Must Assume the Evidence Supports the Trial Court's Order

Clark also complains generally and briefly about the evidence. He states that the trial court's finding that he had a pattern of neglecting Y.L.C. was not supported by credible evidence and that other evidence shows lack of fitness on the part of Ivie. Clark's short ensuing argument centers entirely on Ivie's asserted lack of fitness.

Clark, as appellant, has the burden to provide us a record sufficient to show the asserted error. See Johnson v. Walker, 824 S.W.2d 184, 186 (Tex. App.--Fort Worth 1991, writ denied).
"[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order." Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.--Dallas 2006, pet. denied). When we have no reporter's record and no findings of fact, we assume that the evidence supports the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); see Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). As Clark did not arrange to provide a reporter's record, we must assume that the evidence is sufficient to support the judgment.
We overrule this contention of error.

(4) Clark's Generic Assertion that the Trial Court Failed to "Properly File" His Motions and
Letters Does Not Adequately Present Any Issue for Appellate Review

Clark also contends that the court erred by not accepting his "motions" and "letters" to be properly "filed" so as to be heard and ruled on. There are a substantial number of letters and apparent motions from Clark that are contained within the official record of the case. To be in the clerk's record on appeal, the documents must have been filed. Clark points to no specific motion or ruling that was not filed in the trial court. Thus, he has not shown error.

It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991). When the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we ordinarily are not called on to perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We will not do the job of the advocate. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Jackson, 732 S.W.2d at 412.
We overrule this contention of error.

(5) Clark's Generic Assertion that the Trial Court Erred in Not Enforcing Prior Orders Does Not Adequately Present Any Issue for Appellate Review

Clark also contends that the court erred by not enforcing previous rulings in which Ivie was to have completed a parenting program that was required by the court May 17, 2000. The court's docket sheet states that temporary orders were entered on that date, but Clark has directed us to no provision of any relevant order in the record, nor has he shown us any effort to enforce any such ruling, or that, if such a ruling existed, Ivie did not comply with its terms. Clark has not shown error.
We overrule this contention of error.

We affirm the trial court's order.

Josh R. Morriss, III
Chief Justice

Date Submitted: August 9, 2007
Date Decided: August 24, 2007

1. The motion on which this order rests was filed March 9, 2005. Clark promptly responded and repeatedly contacted the trial court in writing, but did not appear before the court January 29, 2007, the date of the hearing on the motion. The record reflects that Clark was properly notified and that he filed an additional document with the trial court on that date. Notice of the hearing was sent October 19, 2006, and was received by Clark October 23.
2. Clark, in his pro-se brief, has not provided extensive citation either to the record or to controlling law--but did set out his arguments in an understandable fashion. Appellee's counsel, in a two-page brief, provided no citation to any authority whatsoever, and responded only to one of five issues set out by Clark.
3. "A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause." Tex. Gov't Code Ann. § 24.016 (Vernon 2004); see Gibson, 102 S.W.3d at 712; Ex parte Munoz, 139 S.W.3d 349, 352 (Tex. App.--San Antonio 2004, no pet.).
4. We recognize exceptions to that general rule in cases involving the termination of parental rights, see Tex. Fam. Code Ann. § 107.013 (Vernon Supp. 2006); juvenile delinquency, Tex. Fam. Code Ann. § 51.10 (Vernon Supp. 2006); and court-ordered mental health services, Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003). None of those situations are implicated in this case.
5. The exceptional-circumstances concept is generally mentioned, but the Texas Supreme Court declined to expressly hold that exceptional circumstances was the proper boundary for the court's discretion. See Gibson, 102 S.W.3d at 713. We have found no case--and Clark suggests none--finding an exceptional circumstance which would trigger a duty to appoint counsel in a civil case, other than the recognized constitution-based cases: termination of parental rights, juvenile delinquency, and court-ordered mental health services.

SAPCR: Fox v. Fox (Tex.App-.Austin 2006) Child ordered to remain in same school, but restriction beyond end of school year reversed

2007-08-25T15:24:00.000-07:00

Appeals court panel also holds that trial court's failure to file findings of facts was not harmful, and that trial court properly modified tax provisions of decress, which were challenged as conflicting with previously signed Rule 11 agreement.

Tina Marie Fox v. Troy Ben Fox, No. (Tex.App.- Austin, Jan. 13, 2006)(mem. op.)(Opinion by Justice Smith)(residency restriction reversed in part)(Before Justices Patterson, Pemberton and Smith)
Appeal from 33rd District Court of Burnet County

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 21,584, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING

MEMORANDUM OPINION BY JUSTICE BEA ANN SMITH

Appellant Tina Marie Fox appeals two issues pertaining to the final decree of divorce from her marriage to appellee Troy Fox. (1) After issuing the divorce decree, (2) the district court ordered that Tina and Troy's daughter M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year, and that her primary residence be restricted to Burnet County.

The district court also ordered that the portions of the initial decree addressing the couple's tax liabilities for prior years and child support obligations be corrected and modified. After the district court issued these orders, Tina requested findings of fact and conclusions of law. The district court denied her request, finding that it was not timely filed.

In her first and second issues on appeal, Tina contends that the district court erred by (1) failing to issue findings of fact and conclusions of law and (2) finding her request for findings of fact and conclusions of law untimely. In her third, fourth, and fifth issues, Tina insists that the district court abused its discretion by ordering that: (3) M.F.'s residence be restricted to Burnet County; (4) M.F. attend St. Peter's Lutheran School for the 2004-05 school year; and (5) certain portions of the initial decree be corrected and modified.

Because we hold that Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion by issuing the post-initial decree orders, we affirm in part. However, we also reverse and remand in part because we hold that no substantive or probative evidence exists that would support the court's restriction of the child's residence to Burnet County beyond the school year 2004-05.

BACKGROUND

Tina and Troy were married in August 1995. Tina worked in automotive sales and also ran a nail salon. Troy owned and operated pawn shops in Marble Falls, Taylor, and Belton. Tina had a ten-year-old son, Anthony, from a prior relationship; Troy had no children. Tina, Troy and Anthony lived together in Burnet County throughout the marriage. Tina has no family in Burnet County. Her two sisters live in Belton and Killeen; her mother lives in West Virginia. Troy grew up in Burnet County; his parents, two siblings, and several nieces and nephews, still reside there. After M.F. was born in 1998, the couple agreed that Tina would stop working to stay home with the children.

Troy filed for divorce in April 2002. In June 2004, the district court issued its "final order" concerning conservatorship of M.F. Tina and Troy were appointed joint managing conservators, with Tina having the exclusive right to establish M.F.'s primary residence. The court stated that a possible geographic restriction would be addressed at a later date. Trial on all unresolved issues was set for July.

On the day before trial, Tina and Troy entered into a Rule 11 agreement that addressed community property issues, as well as child support. The agreement specifically stated that any issues pertaining to a geographical restriction or choice of schools for M.F. in 2004-05 would either be addressed in a separate agreement or be decided by the court. At the hearing, Tina insisted that it would be in M.F.'s best interest to allow her to move to nearby Lakeway (3) and attend public school there. Troy wanted to restrict her residence to Burnet County. When the couple could not agree, a hearing was held on July 22, 2004. At the close of the hearing the district judge announced that it was in M.F.'s best interest to remain in Burnet County and return to her same school for the first grade in Fall 2004.

A written order imposing this geographic restriction was filed on August 28.

The district court signed the initial decree of divorce on July 26, 2004. It addressed the couple's federal income tax liability for prior years and the year of divorce. The initial decree stated, "In the event that there is a refund for prior years, the parties shall split the refund." This decree also included this statement addressing income tax liability in the year of divorce: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, Tina Fox is ordered to sign any documents necessary to implement this agreement."

Although the Rule 11 agreement indicated that Troy would pay $1,200 a month in child support, the initial decree failed to impose this child support obligation.

On August 17, Troy filed a motion seeking to reform, clarify, and correct certain property issues in the initial decree. In the alternative, Troy requested a new trial. Troy insisted that the provision entitling him to any prepaid income taxes in excess of the parties' tax liability was incorrectly placed in the section addressing taxes for the year of divorce, rather than taxes for prior years, as the parties had agreed. Likewise, he argued that the clause purporting to divide any tax refund from prior years was contrary to their agreement and was erroneously inserted in the decree by Tina's attorney.

Troy argued that these mistakes rendered the decree in conflict with the parties' Rule 11 agreement, which was incorporated into the initial decree.

After a hearing on October 7, the district court modified the income tax provisions as Troy requested and added the child support obligations that had inadvertently been omitted from the initial decree. On October 13, Tina filed a request for findings of fact and conclusions of law concerning the geographic restriction and the correction and modification of the income tax provisions. On October 29, the district court denied Tina's request, finding it untimely. This appeal followed.

DISCUSSION

Findings of fact and conclusions of law

In her first two issues, Tina suggests that the district court erred by finding untimely her request for findings of fact and conclusions of law. Rule 296 provides a party with the procedural right to request from the trial court written findings of fact and conclusions of law. See Tex. R. Civ. P. 296. The trial court's duty to make such findings and conclusions is mandatory when the request is timely. See Tex. R. Civ. P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.). If a trial court does not file findings, it is presumed harmful unless the record affirmatively shows that the appellant suffered no harm. See, e.g., Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc., 763 S.W.2d at 772; Glass, 137 S.W.3d at 118.
Generally, in complicated cases with disputed facts, or with two or more grounds for recovery or defense, the inference of harm cannot be defeated. Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2003, no pet.).

If, however, the lack of findings is harmless, we can affirm. See Tex. R. App. P. 44.1(a). Error is harmful if it prevents a party from properly presenting a case to the appellate court. See Tex. R. App. P. 44.1(a)(2); Tenery, 932 S.W.2d at 30; Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W.3d 728, 744 n.10 (Tex. App.--Austin 2004, no pet.). A trial court's failure to issue findings of fact and conclusions of law will be considered harmful if, under the circumstances of the particular case, an appellant would be required to guess the reason or reasons for the trial court's decision. Brazoria County, 128 S.W.3d at 744 n.10; Elliott, 118 S.W.3d at 54.

A judgment that actually disposes of all parties and all claims is final. In re Burlington Coat Factory Warehouse, 167 S.W.3d 827, 830 (Tex. 2005). In this case, the district court retained plenary jurisdiction to modify its initial decree, and there was not a final judgment until the district court issued its October 7, 2004 order modifying the initial decree. At that time, the district court resolved the parties' dispute regarding the income tax provisions and imposed the previously agreed upon child support obligation that had not been included in the initial decree. Therefore, the district court erred by finding Tina's October 13 request for findings of fact and conclusions of law untimely. See Tex. R. Civ. P. 296 (providing that requests for findings of fact and conclusions of law be filed within twenty days after judgment is signed).

Because Tina's request was timely, we must determine whether she was harmed by the lack of findings and conclusions. Troy argues that Tina does not have to guess the reasons behind the district court's orders pertaining to either its imposition of the geographic limitation or its decision to correct and modify the initial decree because the district judge, Murray Jordan, announced his rulings and stated his reasons at the hearings. We agree.

At the hearing on the residency restriction, Judge Jordan clearly stated that his main concern was to secure a stable environment for M.F. He acknowledged that for two years the divorce proceedings had been extremely stressful for a child her age. He explained that M.F. had attended St. Peter's Lutheran School in Burnet County for the prior two school years and had made friends there. He insisted that, if M.F. were older and better equipped to deal with the stress of a move and a new school, his decision might have been different. He then stated that restricting her residence to Burnet County would make it easier for M.F. to continue in this same school. Therefore, he ordered M.F. to attend St. Peter's for the first grade (2004-05) and reside in Burnet County. He added, "It may be that a move to outside this area after a year would be appropriate."

At the hearing on Troy's motion to reform, clarify, and correct the judgment, Judge Jordan stated that there clearly were two mistakes made in drafting the decree, the income tax provisions and the omission of any child support obligation, both at odds with the parties' agreement. He suggested the mistakes were probably due to the fact that there was a hurried push to enter the initial decree the day after the Rule 11 agreement was signed. Because he found the provisions of the initial decree and the incorporated Rule 11 agreement ambiguous, he heard evidence pertaining to the parties' intentions. Subsequently, he asserted that the decree entered on July 26 did not accurately represent the parties' intentions.

The record clearly establishes the reasons underlying Judge Jordan's decisions in this case. Therefore, Tina was not harmed by the lack of written findings and conclusions of law. (4) Consequently, we overrule Tina's first two issues regarding the district court's failure to file written findings of fact and conclusions of law.

Residence restriction

In her third and fourth issues, Tina suggests that the district court abused its discretion when it ordered that M.F.'s primary residence be established solely within Burnet County and that M.F. attend St. Peter's Lutheran School for the 2004-05 school year. Tina maintains that the orders are not in the best interest of M.F., who should be allowed to move to Lakeway and enroll in its exemplary public schools. Tina claims that the move would improve both her and M.F.'s quality of life without diminishing Troy's relationship with M.F. In addition, Tina asserts that nearby Lakeway is closer to Troy and his family than other cities actually located within Burnet County.

The legislature has explicitly stated, "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002 (West 2002); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). The trial court is given wide latitude in determining the best interests of the child and will be reversed only for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.--Austin 2003, no pet.). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). As long as some evidence of a substantive and probative character exists to support the order, we will not substitute our judgment for that of the trial court. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.).

Family code section 153.001 states that the public policy of this state is to provide a safe, stable, and nonviolent environment for the child. Tex. Fam. Code Ann. § 153.001(a)(2) (West 2002). The code is silent as to the specific factors that the trial court should consider when determining whether a residency restriction is in the best interest of the child. In Lenz, the supreme court provided some guidance in applying our state's best-interest standard when divorced parents seek to relocate. See 79 S.W.3d at 13-16. The court highlighted various relevant factors to be considered: the reasons for and against the move; the effect on extended family relationships; the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the non-custodial parent and child; the nature of the child's existing contact with both parents, and the child's age, community ties, and health and educational needs. See id. at 15-17. However, the supreme court clearly stated that suits affecting the parent-child relationship are intensely fact-driven and consequently involve careful balancing of these numerous factors. Id. at 18-19.

As we have noted, the district court's primary concern was to provide a secure and stable environment for M.F. The court heard testimony that M.F. had attended St. Peter's Lutheran School for two years and was excited about returning for the first grade. The record also indicates that many of M.F.'s extracurricular activities take place in Burnet County. In addition, there is evidence establishing that most of M.F.'s paternal extended family lives in Burnet County. Judge Jordan recognized that it was difficult for Tina to get along with Troy and his family and that it may not be in her best interest to remain in Burnet County. However, the record indicated that M.F. had been insulated from much of the familial acrimony.

Judge Jordan concluded that it would promote stability for M.F. to attend the first grade at St. Peter's:

The child has attended St. Peter's Lutheran School for two years and made friends, and that the stability for the child will be for her to stay in St. Peter's Lutheran School at least for another year.

The problem with establishing a home for the child in Lakeway would be if the child continues in St. Peter's School, she would have to be transported 35 miles to school each day. If she is closer to St. Peter's School, then it would be better for the child to be able to go to school in St. Peter's Lutheran School.

So the Court feels that the best interest of the child is that she attend St. Peter's Lutheran School one more year, but that the home of the child be established in Burnet County. . . . And certainly as the circumstances change, the-we can change the order. But at this time, I'll rule that the residence of the child be established in Burnet County, and that she be placed in St. Peter's Lutheran School for the first grade.

The record before us includes evidence supporting Judge Jordan's conclusion that the stability of the child would be served by continuing to attend St. Peter's Lutheran School for the school year 2004-05, that changing the child's residence to Lakeway would impede school attendance at St. Peter's by adding 35 miles of transportation twice a day, and that restricting the child's residence to Burnet County would facilitate the goal of keeping her in the same school for another year. Therefore, we hold that the district court did not abuse its discretion by restricting M.F.'s primary residence to Burnet County to enable her to attend the first grade at St. Peter's.

However, we find no substantive or probative evidence that would support the court's restriction of the child's residence to Burnet County and its denial of the mother's request to move to Lakeway after that school year ended. (5) We hold that the court abused its discretion in continuing the restriction and denying the mother's request to allow the child to reside in the Lakeway community after the end of the 2004-05 school year. We sustain in part Tina's third and fourth issues.

Modification and correction of the initial decree

In her final issue, Tina argues that the district court abused its discretion by ordering that the initial decree be modified and corrected. Tina claims that the district court (1) erroneously admitted evidence of the couple's settlement negotiations; (2) improperly allowed Troy to renegotiate the corrected and modified initial decree; and (3) failed to divide income tax refunds from prior years in a just and right manner.

The district court signed and filed the initial decree on July 26, 2004. On August 17, Troy filed a motion seeking to reform, clarify, and correct certain portions of the initial decree. He argued that the portions of the initial decree pertaining to the couple's income tax liabilities were ambiguous because the Rule 11 agreement was not properly incorporated into the initial decree.

On September 24, the district court held a hearing on Troy's motion. At the hearing, the district court heard testimony from Troy's attorney, Robert Gradel, and Gradel's secretary, Jennifer Bunting, that during the settlement negotiations Troy agreed to pay a portion of Tina's credit card debt in exchange for receiving any tax prepayments or overpayments. Gradel also offered into evidence copies of faxes that he sent to Tina's attorney, Glynn Turquand, pointing out this drafting error in the initial decree. In one fax, Gradel made three suggestions for language that he felt should be included in the decree. Gradel stated that two of the suggestions were adopted, but his request that the decree section entitled "Liability for Federal Income Taxes for Prior Year" include a sentence awarding Troy any refunds was not incorporated as requested. (6)

Instead, substantially similar language was placed in the section entitled Treatment/Allocation of Community Income for Year of Divorce. Finally, Gradel testified that the sentence, "In the event that there is a refund for prior years, the parties shall split the refund," was contrary to the parties' agreement as reflected in the Rule 11 agreement. Turquand objected to the admission of Gradel's and Bunting's testimony, as well as the faxes. He claimed Texas Rule of Evidence 408 barred the admission of evidence of conduct or statements made during settlement negotiations. See Tex. R. Evid. 408. Turquand also argued that both the Rule 11 agreement and the initial decree were clear and unambiguous.

The district court found the initial decree and the Rule 11 agreement ambiguous and on October 7 it ordered that three sections of the initial decree be corrected or modified. First, the district court deleted the sentence splitting tax refunds for prior years between the parties. Second, it transferred the sentence granting Troy all prepayments of tax to the section concerning tax liability for prior years. Finally, the district court ordered that the initial decree be modified to include the previously agreed upon child support provision. (7)

Ambiguity

Whether a divorce decree or an agreement is ambiguous is a question of law subject to de novo review. See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex. App.--San Antonio 2004, no pet.). We interpret a divorce decree like any other judgment, reading the decree as a whole and "effectuating the order in light of the literal language used" if that language is unambiguous. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). A judgment is ambiguous if it is susceptible to more than one reasonable interpretation. Shanks, 110 S.W.3d at 447. If the decree is ambiguous, a court should review the record along with the decree to aid in interpreting the judgment. Id.

After extensive negotiation, Tina and Troy entered into a Rule 11 agreement outlining how the marital property would be divided. The substance of the agreement was to be included in the initial decree. Specifically, the initial decree states, "The Court finds that the parties have entered into an Agreement Incident to Divorce, in a document separate from this Final Decree of Divorce. The Court approves the agreement and incorporates it by reference as part of this decree as if it were recited herein verbatim and orders the parties to do all things necessary to effectuate the agreement." The only reference to the couple's income tax liabilities in the Rule 11 agreement is found in paragraph 8 which states, "For 2004, parties [Tina and Troy] will partition income, taxes will be as if divorced on January 1, 2004. Any tax prepayment or deficit will belong to Troy for pawn shops, his income."

In her response to Troy's motion, Tina contends that paragraph 8 addresses only the couple's tax liability for 2004. However, it is unclear whether the reference to 2004 in the first sentence also modifies the second sentence governing the treatment of tax prepayments and deficits. The second sentence could be read to mean any tax prepayment or deficit in 2004, or it could be read to mean any tax prepayment or deficit from any year. This distinction is critical because Troy insists that the word "prepayment" includes overpayments from prior years. Troy maintains that he should be allowed to apply all overpaid income taxes in 2003 to offset his 2004 tax liability. Tina would confine the second sentence in paragraph 8 to the year 2004 and rely on the unexplained insertion dividing tax refunds between the parties to claim one-half of the tax refund from 2003.

We conclude that the second sentence of paragraph 8 is ambiguous because it is susceptible to more than one reasonable interpretation. Therefore, if the parties intended to award any income tax prepayments or deficits to Troy, this is in direct conflict with the provision in the initial decree that any tax refund from a prior year be divided between the parties. Because the decree specifically incorporated the Rule 11 agreement, we conclude that the provisions of the decree that address federal income tax liabilities and refunds are ambiguous. See Shanks, 110 S.W.3d at 447. Therefore, the district court did not abuse its discretion by admitting evidence for the purpose of ascertaining the parties' intentions. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 413 (Tex. App.--Austin 2005, pet. filed).

Modification

A trial court retains plenary power to vacate, modify, correct, or reform its judgment at any time until the judgment becomes final thirty days after it is signed. See Tex. R. Civ. P. 306a (time periods run from date judgment is signed), 329b (motions for new trial and motions to modify, correct, or reform judgment extend duration of trial court's plenary power); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); In re Garza, 153 S.W.3d 97, 102 (Tex. App.--San Antonio 2004, no pet.). Within this time period, the trial court's power to modify its judgment has been described as "practically unlimited" or "virtually absolute." Rogers v. Clinton, 794 S.W.2d 9, 12 (Tex. 1990) (Cook, J., dissenting); Cook v. Cook, 888 S.W.2d 130, 131 (Tex. App.--Corpus Christi 1994, no writ).

However, once a divorce decree becomes final it is beyond the power of the trial court to issue an order that modifies the division of property. Tex. Fam. Code Ann. § 9.007(b) (West 1998). Property adjudications in a divorce decree become final the same as other judgments relating to title and possession of property. Harleaux v. Harleaux, 154 S.W.3d 925, 928 (Tex. App.--Dallas 2005, no pet.). Here, the district court's plenary power had not expired at the time it signed the October 7 order modifying the initial decree. See Tex. R. Civ. P. 329b(a) (motion to modify shall be filed within thirty days after judgment is signed), 329b(c) (if motion to modify is not determined within seventy-five days after judgment was signed, it shall be considered overruled). Therefore, the district court was authorized to modify the initial decree in accordance with the evidence of the parties' agreement. See Cook, 888 S.W.2d at 131.

The record includes testimony and evidence supporting the district court's modification of the initial decree. The modification is also supported by other non-disputed provisions of the initial decree. First, the parties agree that Troy is liable for any income tax deficit in all prior years. If Troy is liable for any prior income tax liability, it follows that he also be entitled to any tax refund or overpayment. Second, both the initial decree and the Rule 11 agreement explicitly state that community income generated in 2004, the year of divorce, shall be partitioned as if the couple were divorced on January 1, 2004. Under the partition agreement, Tina and Troy would file separate income tax returns for 2004 reflecting "all income earned by gains and losses generated by, and deductible expenses referable to assets awarded" to either Tina or Troy under the initial decree. Thus, the provision in paragraph 8 of the Rule 11 agreement that, "Any tax prepayment or deficit will belong to Troy for pawn shops, his income," would be redundant if it only applied to the year 2004.

Accordingly, we hold that the district court's modification of the income tax provisions in the decree of divorce did not constitute an abuse of discretion.

CONCLUSION

We hold that (1) Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law; (2) the district court did not abuse its discretion by ordering that M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year and that she reside in Burnet County in order to facilitate her attendance at St. Peter's; and (3) the district court did not abuse its discretion by modifying and correcting the income tax provisions of the initial decree. However, we hold that the district court abused its discretion in extending the geographic restriction on the child's residence beyond the 2004-05 school year. We reverse and remand that portion of the divorce decree for further proceedings consistent with this opinion.
__________________________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Patterson and Pemberton
Affirmed in Part; Reversed and Remanded in Part
Filed: January 13, 2006

1. For ease of reference, we will refer to the parties by their first names.
2. The divorce decree was issued in July 2004 and was entitled "Final Decree of Divorce on Property Issues." We will refer to the decree as the "initial decree." Earlier the district court had issued an order concerning conservatorship and support of the child. In that order, the district court specifically stated that any geographic restriction on the residence of the child would be addressed at a later time. The initial decree explicitly incorporated the order concerning conservatorship of the child.
3. Lakeway, Texas, is a small community approximately thirty-five miles from the Marble Falls area, which is where Tina and M.F. lived at the time of the divorce.
4. We emphasize that oral comments from the bench are not substitutes for written findings of fact and conclusions of law. See In re Jane Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on Judge Jordan's oral pronouncements solely for the purpose of conducting our harm analysis.
5. The record reflects that St. Peter's Lutheran School enrolls students from pre-kindergarten through second grade. M.F. would not be able to attend St. Peter's beyond the end of the school year 2005-06. The record does not reflect if M.F. is presently enrolled in the second grade at St. Peter's.
6. The requested insertion read: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, and Tina Fox is ordered to sign any documents necessary to implement this agreement."
7. Neither party raises a complaint about the modification adding the child support obligation to the decree of divorce.

SAPCR-MTM: Wiegman v. Wiegman (Tex.App.- Austin 2006) - No custody switch within one year of prior order; court rejects mother's affidavit

2007-08-25T15:03:00.000-07:00

Austin Court of Appeals affirms denial of mother's bid to change custody within one year of previous order; holds that required affidavit to support petition to modify was insufficient and that trial court did not abuse its discretion in denying relief, and in declining to interview the five-year old child in chambers as to her preference for primary conservator.

Gina Cole Wiegman v. Michael Wiegman, No. (Tex.App.- Austin, Feb. 10, 2006)(mem. op.)(Opinion by Justice Waldrop)(modification of custody within one year denied, insufficient affidavit)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 22nd District Court of Hays County

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 02-0855, HONORABLE RONALD G. CARR, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Gina Cole Wiegman appeals from the district court's dismissal of her petition to modify the parent-child relationship. She challenges the court's denial of her request to modify the designation of the person who has the exclusive right to determine the child's primary residence and the court's refusal to confer with the five-year-old child regarding the child's preferences as to custody. We affirm the judgment.

Ms. Wiegman and Michael Wiegman are parents of a child, C.W. An order in a suit affecting the parent-child relationship was rendered on September 7, 2004. Although neither the September 2004 order nor any other previous orders appear in the record of this appeal, statements by the parties indicate that this was not the first such order concerning C.W. Statements by the parties indicate that a previous order permitted Ms. Wiegman to determine C.W.'s primary residence, and that they lived in Kansas. The September 2004 order apparently ordered joint managing conservatorship, with Mr. Wiegman having the right to determine the child's domicile, possession of the child alternating between the parents, and some specified telephone visitation for Ms. Wiegman during the periods C.W. stayed with Mr. Wiegman and his wife, Betsy. At the time of the proceedings in this cause, the parties lived in San Marcos, Texas.

Ms. Wiegman filed this petition on November 16, 2004 requesting modifications to the decree including that she be given the right to designate the primary residence of the child. She attached to her petition an affidavit detailing incidents she believed showed that the child's physical health and emotional well-being were endangered by his environment. On December 7, 2004, she filed a request that the court confer with the child. At a non-evidentiary hearing that same day, the court denied both Ms. Wiegman's request that the court interview C.W. and her motion to modify conservatorship. (1) Ms. Wiegman challenges both denials.

We review both decisions for an abuse of discretion. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied) (motion to modify); In re Marriage of Stockett, 570 S.W.2d 151, 153 (Tex. Civ. App.--Amarillo 1978, no writ) (interview of child). This standard is consistent with the general rule that a trial court's custody determination will not be disturbed absent clear abuse of discretion because of the court's superior opportunity to evaluate the child's needs and to observe and evaluate the personalities of contending claimants. See Cooper v. Texas Dep't of Human Res., 691 S.W.2d 807, 814 (Tex. App.--Austin 1985, writ ref'd n.r.e.); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion by acting unreasonably, arbitrarily, or without regard for any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A corollary principle is that we may not reverse for abuse of discretion merely because we disagree with a decision of the trial court, if that decision was within the trial court's discretionary authority. Downer, 701 S.W.2d at 242.

By her second issue, Ms. Wiegman complains about the court's refusal to interview C.W. A court may, but is not required to, interview a five-year-old child to determine the child's preference for conservatorship under the statute that provides as follows:

(a) In a nonjury trial the court may interview the child in chambers to determine the child's wishes as to conservatorship.

(b) When the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child 12 years of age or older and may interview a child under 12 years of age.

See Tex. Fam. Code Ann. § 153.009 (West Supp. 2005).

In Stockett, the trial court refused to interview a five-year-old child because it did not want that child to think, consciously or subconsciously, that she contributed to the decision of which parent was appointed her managing conservator. 570 S.W.2d at 153. The appellate court held that, under those circumstances, the trial court did not abuse its discretion. Id.

We find no abuse of discretion in the district court's refusal to interview C.W. The statute permits the court to interview children younger than twelve years old but does not require it and places no conditions on the court's refusal to exercise that option. Tex. Fam. Code Ann. § 153.009. The court did not explain its reasons beyond stating in open court that the court would not talk to a five-year-old child about where he wanted to live. The court stated that the child would need to be at least ten years old before the court would discuss the issue with the child. The court in this cause may have had the same concerns about lasting emotional trauma from the interview expressed by the court in Stockett, 570 S.W.3d at 153, or it may have had entirely different concerns. The record does not demonstrate that the trial court acted unreasonably, arbitrarily, or without regard for guiding rules or principles by declining to interview C.W. in chambers. We find that the trial court did not abuse its discretion in declining to interview C.W.

By her first issue, Ms. Wiegman contends that the court erred by denying her request to change the designation of the person having the exclusive right to determine the primary residence of the child. When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship of children. Burkhart, 960 S.W.2d at 323.

A person who seeks to change the designation of the person who has the exclusive right to determine the child's primary residence within a year after such a designation was ordered faces a heightened burden. Id. In such a circumstance, the petitioner must file an affidavit that supports a finding of the existence of one of three conditions including, as alleged in this case, that "the child's present environment may endanger the child's physical health or significantly impair the child's emotional development." See Tex. Fam. Code Ann. § 156.102(b)(1) (West Supp. 2005). If the court determines, based on the affidavit, that the facts stated are adequate to support such an allegation, the court shall set a time and place for the hearing. Id. § 156.102(c). Otherwise, the trial court "shall deny the relief sought and refuse to schedule a hearing for modification . . . ." Id.

In her affidavit, Ms. Wiegman recounts several incidents that she contends support her claim to modify conservatorship. Some predate the August 2004 hearing and the resulting September 2004 conservatorship order that Ms. Wiegman seeks to modify. The allegations include rudeness by Mr. Wiegman in front of C.W., C.W. being allowed to play on a trampoline during a storm, Mr. Wiegman failing to confer with Ms. Wiegman on matters pertaining to school and tee-ball, complaints regarding C.W.'s hygiene while staying with Mr. Wiegman, and Mr. Wiegman failing to agree on issues of rescheduling possession and transfer of possession.

In order to reverse the district court's decision, we would have to conclude that the court acted arbitrarily, unreasonably, and without reference to guiding rules and principles in refusing to schedule a hearing and dismissing the petition. See Burkhart, 960 S.W.2d at 323; see also Downer, 701 S.W.2d at 241-42. While the incidents described suggest a problematic relationship between C.W.'s parents, we cannot conclude that the court abused its discretion by implicitly determining (2) that the affidavit does not describe an environment that endangers the child's physical health or significantly impairs the child's emotional development. See Tex. Fam. Code Ann. § 156.102(b)(1).

We affirm the district court's dismissal of Ms. Wiegman's petition.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed

Filed: February 10, 2006

1. Although Judge Robison orally denied the motions at the hearing, Judge Ronald Carr later signed the order memorializing the denial of Ms. Wiegman's motions in July 2005.

2. Ms. Wiegman asserts that the district court did not consider her affidavit. She refers to a section of the reporter's record in which the court stated, "I'm trying to find the motion that you're here on today. I don't see one here so far. It has to be in the file." This contains no representation about any review the court might have undertaken in the three weeks after the filing of the motion and affidavit and before the hearing. We cannot assume that the district court did not read the affidavit. We must instead presume that the court made all necessary findings and conclusions to support its decision. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). This includes review of necessary documents.

SAPCR-MTM: Howze v. Howze (Tex.App.- Austin 2006) - Jury's denial of custody change to mother affirmed

2007-08-25T14:41:00.000-07:00

Austin Court of Appeals rejects complaint about guardian for child serving in dual capacity, finding waiver for purposes of appeal; also rejects claim of ineffective assistance of counsel; and affirms order denying mother's request for conservatorship with right to designate child's residence based on jury's verdict.

Judy Howze v. William Howze, No. (Tex.App.- Austin, May 18, 2006)(Opinion by Chief Justice Law)(modification, GAL, AAL)(Before Chief Justice Law, Justices Patterson and Smith)
Appeal from 27th District Court of Bell County

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 148,770-A, HONORABLE JOE CARROLL, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N BY

This appeal arises out of appellant's motion to modify a joint managing conservatorship to change the conservator with the right to designate the residence of the child L.H. from William Howze to Judy Howze. (1) After trial, the jury found that no modification should be made, leaving William Howze as the conservator with the right to designate the residence. The court signed an order in accordance with the jury's verdict, from which Judy Howze appeals.

In three issues on appeal, Judy Howze contends that the same person was improperly appointed as both the guardian and attorney ad litem; that her child received ineffective assistance of counsel; and that she was deprived of her right to protect the best interest of her child.

Background

The disputed issue in this case was with whom L.H. would live. Because we will dispose of the issues presented on procedural grounds and there are no factual or legal sufficiency issues or abuse of discretion issues, we do not have to discuss in detail the allegations and counter-allegations between the parents. Basically, Judy Howze contended that L.H. preferred living with her. William Howze and others (2) disputed that assertion, alleging that Judy Howze manipulated L.H. and put words in his mouth.

Discussion

Dual appointment

In her first issue, Judy Howze complains that the same person was appointed as both guardian and attorney ad litem. The family code provides for a dual appointment in certain circumstances. Tex. Fam. Code Ann. § 107.0125 (West Supp. 2005). Before we delve too deeply into this issue, however, we must first determine whether error has been preserved.

If an issue is not raised at the trial court level, it will not be addressed on appeal. See Tex. R. App. P. 33.1. If a party fails to object and bring error to the trial court's attention, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); In re Lendman, 170 S.W.3d 894, 898 (Tex. App.--Texarkana 2005, no pet.). A party may not enlarge a ground of error on appeal to include an objection not asserted at trial. See In re Lendham, 170 S.W.3d at 898. Judicial economy requires that the trial court have the opportunity to correct error before an appeal ensues. Nadolney v. Taub, 116 S.W.3d 273, 282-83 (Tex. App.--Houston [14th Dist.] 2003, pet. denied) (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999)).

The orderly administration of justice requires that issues and objections be raised in the trial court so that justice may be done there rather than allowing a litigant to wait until after the trial court has acted adversely and then complain for the first time on appeal. National Lloyds Ins. Co. v. McCasland, 566 S.W.2d 565, 568-69 (Tex. 1978); Powell v. Powell, 604 S.W.2d 491, 493 (Tex. Civ. App.--Dallas 1980, no writ). Another reason for requiring a litigant in a civil case to lay a predicate in the trial court before pursuing an appeal is that a litigant should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating a complaint for the first time. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)).

We conclude that this issue has not been preserved for review. Judy Howze (3) moved for the appointment of an attorney ad litem. She signed the agreed order that appointed the ad litem to her dual role. A pre-trial hearing was held two months before trial, at which time the ad litem disclosed her recommendation that L.H.'s residence remain with his father. Judy Howze did not object. No objection was made by either party, nor was one made as the ad litem acted during the trial.

This situation illustrates the underlying jurisprudential concerns behind the rules on preservation. A litigant who has had ample opportunity to object and raise a complaint at the trial court level cannot wait until an adverse jury outcome, and for the first time on appeal, object to a matter that the trial court could have remedied. See National Lloyds Ins. Co., 566 S.W.2d at 568-69. We overrule the first issue.

Ineffective Assistance

In her second issue, Judy Howze contends that her child was denied effective assistance of counsel. The doctrine of ineffective assistance of counsel does not extend to civil cases in general. See Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.--Houston [14th Dist.] 2003, no pet.); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.--Beaumont 1998, pet. denied). The case on which appellant relies involved a termination of parental rights. See In re K.L., I.L., & D.L., 91 S.W.3d 1, 3 (Tex. App.--Fort Worth 2002, no pet.).

The Texas Supreme Court has held that the doctrine of ineffective assistance applies in termination cases. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (statutory right to counsel in parental-rights termination cases embodies right to effective counsel). This is not a termination case nor a case involving loss of custody or loss of visitation rights. It is a case about changing the status quo with regard to which parent decides where the child will reside. As such, we apply the general rule that there is no right to effective assistance of counsel in a civil matter. See Cherqui, 116 S.W.3d at 343. Accordingly, we overrule the second issue.

Deprivation of ability to protect best interest of child

In her third issue, Judy Howze contends that the trial court's decision to appoint an ad litem deprived her of her ability to protect the best interest of her child. We again note that Judy Howze requested the appointment of an ad litem and failed to object as the proceedings continued, thus waiving any appellate complaints concerning the ad litem's appointment. Further, this issue assumes that because the outcome of this proceeding was not as Judy Howze desired, the child's best interests were not protected. However, the jury had a great deal of evidence before it, much of it in the form of evidence from various relatives and teachers concerning the detrimental effects, such as lowered grades, observed during periods when the child had resided with his mother from which to draw its conclusion concerning the child's best interest.

Texas courts have held that application of the best interest of the child standard does not violate a parent's due process rights. See Peck v. Peck, 172 S.W.3d 26, 34 (Tex. App.--Dallas 2005, pet. denied); In re H.D.O., 580 S.W.2d 421, 423-24 (Tex. Civ. App.--Eastland 1979, no writ). The finder of fact is charged with making a decision based upon the testimony, but also based upon its experience and understanding of the individuals involved and their circumstances because it is in the best position to observe the demeanor and personality of the witness and to "feel the forces, powers, and influences that cannot be discerned by merely reading the record." Peck, 172 S.W.3d at 35 (quoting In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.--Dallas 2003, no pet.).

That a parent disagrees with the court's determination as to the child's best interest does not mean that the child's best interest was not protected. See id. at 34 (every custody and visitation order limits a parent's rights to some extent). We overrule the third issue.

Conclusion

We have overruled appellant's three issues. We affirm the trial court's order.

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed: May 18, 2006

1. For clarity, we will refer to the parties by their full names.
2. Other witnesses included L.H.'s older brother and teachers.
3. All parties were represented by counsel.

SAPCR-MTM: Zeifman v. Michels (Tex.App.- Austin 2006)

2007-08-25T14:09:00.000-07:00

In the this modification proceeding the reviewing court on appeal disagreed that the mother had met her burden to show a material and substantial change to justify giving her the exclusive right to make educational decisions for the parties' child. Finding that the trial court had abused its discretion in ordering the modification, the Austin Court of Appeals reversed the trial court's order and rendered judgment for the father.

Clifford Zeifman v. Sheryl Diane Michels, No. (Tex.App.- Austin, Aug. 4, 2006)(Opinion by Justice Patterson)(suit for modification of parental rights, grant of exclusive right to make educational decisions reversed)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 126th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 97-09369, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

OPINION BY JUSTICE PATTERSON

Clifford Zeifman appeals the trial court's modification order of a divorce decree giving appellee Sheryl Diane Michels the exclusive right to make decisions concerning their daughter's education. In two issues, he complains that the trial court abused its discretion in finding a material and substantial change in circumstances sufficient to warrant a modification and in determining that the modification was in the best interest of the child. Because the evidence is legally insufficient to support a modification, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Zeifman and Michels were married on January 12, 1992. Two children were born of their marriage: G.L., a son, on August 13, 1994, and A.A., a daughter, on February 16, 1997. A divorce decree was signed on August 4, 1998, based upon an "irrevocable mediated settlement agreement" that was filed with the court and incorporated into the decree. See Tex. Fam. Code Ann. § 6.602 (West 2006). In the decree, the parties agreed that its provisions could be modified by a court of competent jurisdiction.

The decree named both parents as joint managing conservators. As to the children's education, the decree included a negotiated agreement:

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that the children shall attend the University of Texas Lab School until such a time as the children are of the age to attend elementary school.

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that, at that time, the children shall attend the public school in the following order of priority for elementary school: (1) Bryker Woods; or (2) Casis; provided, however, that if neither party lives in a residential area eligible to attend either Bryker Woods or Casis, then the children shall attend elementary school which the children are eligible to attend, at the highest rated school, the highest rating being determined by the annual TAAS testing, using the previous year's rankings, or shall attend another elementary school to which the parties agree in writing.

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that for middle school, the children shall attend the middle school into which the children's elementary school feeds. The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that for high school, the children shall attend the high school into which the children's middle school feeds.

The decree also contained a provision specifying a mechanism if the parties were unable to agree:

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that if the parties cannot agree on educational decisions for a child, the parties shall follow the recommendations of the person that is the child's teacher at the time of the decision. IT IS ORDERED that, as child support, Clifford Zeifman and Sheryl Diane Michels Zeifman shall each pay . . . half (½) of the costs referable to the children's attendance at the University of Texas Lab School.

At the time of the divorce, Michels lived in the house that had been the couple's home prior to the divorce, which was within the geographical boundaries for enrollment at Bryker Woods elementary school. Zeifman moved into a house across the street from the school.

Although the parties intended for their son, G.L., to attend Bryker Woods, they learned while he was attending kindergarten that he had learning difficulties. They were able to reach an agreement to move him to a private school that both parents agreed was more suitable to his special needs.

A.A. entered the first grade at Bryker Woods. In April 2004, when A.A. was still in the first grade, Michels applied for her admission to St. Andrew's Episcopal School for the next school year. She did not notify Zeifman of the application. As part of her application, Michels included a recommendation from A.A.'s first-grade teacher at Bryker Woods, and A.A. was tested to determine her academic suitability. On May 3, A.A. was placed on a waiting list for admission and Michels notified Zeifman of her decision to apply for A.A.'s admission to St. Andrew's. In June, A.A. was accepted for admission to the school.

Zeifman objected to the change of schools and insisted that the parties follow the decree, which provided for A.A. to continue her education at Bryker Woods. Michels consulted with A.A.'s first-grade teacher at Bryker Woods who had supplied the application recommendation. The teacher advised Michels she thought "it would be best if [A.A.] stayed at Bryker Woods."

On July 19, 2004, Michels filed a Petition to Modify Parent-Child Relationship, asking the court to modify the decree and award her the exclusive right to make educational decisions regarding A.A. The petition stated that the order to be modified was the Agreed Final Decree of Divorce that was rendered on August 4, 1998. Michels alleged that (i) the circumstances of "the children or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order such that the provisions of the Agreed Final Decree of Divorce regarding education are no longer appropriate and in the best interest of the children who are the subject of this suit," and (ii) A.A. had been accepted for admission to St. Andrew's which was a "more exceptional educational opportunity than either [her current school] Bryker Woods or Casis elementary schools."

After a hearing, the trial court modified the decree to provide that Michels has the sole right to make educational decisions for their daughter. The trial court determined that the circumstances of the child had materially and substantially changed since the date of the rendition of the original divorce decree. Finding only that "A.A. is different, times are different, you're remarried, life is different," the trial court concluded that these circumstances constituted material and substantial changes. Turning to the child's best interest, the trial court concluded that it was in the child's best interest for Michels to have the exclusive responsibility for educational decisions.

Although Zeifman requested findings of fact and conclusions of law, the trial court failed to file them.

ANALYSIS

In two issues on appeal, Zeifman contends that the trial court abused its discretion in modifying the divorce decree giving Michels the exclusive right to make decisions concerning A.A.'s education. Specifically, Zeifman complains that the trial court abused its discretion in finding a material and substantial change in circumstances sufficient to warrant a modification and that the modification would be in the best interest of the child because the evidence presented at trial was legally and factually insufficient as to both requirements.

Standard of Review

We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of P.M.B., 2 S.W.3d 618, 622 (Tex. App.--Houston [14th Dist.] 1999, no pet.). The trial court's order will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Id. A trial judge is wisely vested with this discretion because she is best able to observe the witnesses' demeanor and personalities. A trial court abuses its discretion if it acts arbitrarily and unreasonably or without regard to guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (applying abuse of discretion standard with regard to child support order); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial court decided an issue in a manner differently than an appellate court would under similar circumstances does not establish an abuse of discretion. 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. P.M.B., 2 S.W.3d at 622.

Under an abuse of discretion standard, legal and factual sufficiency challenges to the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. In re D.M., 191 S.W.3d 381, 393 (Tex. App.--Austin 2006, pet. denied); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.--Houston [1st District] 2005, pet. denied). Because we apply an abuse-of-discretion standard to a modification suit, the traditional sufficiency standards of review overlap the abuse of discretion standard, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.--Austin 2002, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.--Houston [14th Dist.] 2002, no pet.).
Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Echols, 85 S.W.3d at 477-78; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.--El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Echols, 85 S.W.3d at 478. The appellate court then proceeds to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court's decision was neither arbitrary nor unreasonable. Id.

If findings of fact and conclusions of law are properly requested, the trial court's duty to file findings and conclusions is mandatory, and the failure to respond when all requests have been properly made is presumed harmful unless the record shows that the complaining party has suffered no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The court must make findings on each material issue raised by the pleadings and evidence, but not on evidentiary issues. In re Davis, 30 S.W.3d 609, 614 (Tex. App.--Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.--El Paso 1999, no pet.). Because the trial court did not issue any findings of fact or conclusions of law, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). But when the appellate record includes both the reporter's record and the clerk's record, as it does here, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). We thus turn to the standard for a challenge to the legal sufficiency of the evidence.
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).

A legal sufficiency challenge may be sustained when (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 finding under review, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. We must consider evidence 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, 828 (Tex. 2005).
In determining a factual sufficiency question, we weigh and consider all the evidence in the record. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

Modification of Conservatorship Because of Material and Substantial Change

To support modification of an order regarding conservatorship, a trial court must find that the modification would be in the best interest of the child and, as it applies to this case, that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1) (West Supp. 2005). The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.--Dallas 2004, no pet.); In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.--Fort Worth 2002, pet. denied); Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ). The best interest of the child is always the primary consideration of the court in determining issues of conservatorship. Tex. Fam. Code Ann. § 153.002 (West 2002).

In a conservatorship modification action, a threshold inquiry of the trial court is whether the moving party has met the burden imposed upon him of showing a material and substantial change; otherwise the trial court must deny the motion to modify. Bates v. Tesar, 81 S.W.3d 411, 427 (Tex. App.--El Paso 2002, no pet.). To prove that a material change in circumstances has occurred, the petitioner must demonstrate what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify. Agraz, 143 S.W.3d at 554; Considine, 726 S.W.2d at 255. The petitioner must show what material changes have occurred in the intervening period. Id.

(1) The Petition to Modify Parent-Child Relationship

The only basis asserted in the modification petition to support the requirement of a material and substantial change was A.A.'s application and admission to St. Andrew's. Having gained her daughter's admission to St. Andrew's Episcopal School, Michels filed a modification petition seeking a departure from the negotiated agreement concerning her daughter's education contained in the agreed divorce degree. Zeifman opposed the modification, seeking to continue their daughter's education at Bryker Woods, the public school to which the parties had agreed and set forth in the divorce decree. Although the petition references both children, the parties agree that the modification at issue and the court's order relate only to A.A.

(2) The Evidence

The testimony showed that the dispute that led to the filing of the petition for modification arose when Michels applied for and obtained A.A.'s admittance to St. Andrew's Episcopal School. As a Jew raising Jewish children, Zeifman opposed the modification because he did not want the child to attend a Christian school and she was thriving at the public school the parties had agreed to in the divorce decree.

The undisputed evidence showed that A.A. progressed successfully through kindergarten, first grade and the beginning of second grade at Bryker Woods prior to trial. In April 2004, Zeifman and Michels discussed enrolling A.A. at a private school. Zeifman proposed that A.A. attend the Austin Jewish Academy, but Michels disagreed and rejected the proposal. Michels did not believe the academy had "the academic strengths that I would require for her to be there." Without notifying Zeifman, Michels contacted and applied to St. Andrew's for admission, had A.A. tested, and asked A.A.'s current first-grade teacher for a recommendation. After A.A. was placed on a waiting list on May 3 subject to available openings at the school, Michels notified Zeifman. A.A. was accepted for admission on June 28. On June 30, Michels executed the school's enrollment contract and forwarded a tuition check. She informed the school, "I am working with her father to get his agreement regarding her attendance. Otherwise her enrollment will be subject to modification of our divorce decree."

Zeifman did not agree to enroll A.A. at St. Andrew's, insisting that the parties follow the agreement to send her to Bryker Woods, the public school to which the parties had agreed, and at which the parties agreed she was doing well. Zeifman testified,

My daughter is thriving at the community public school across the street from my home. And I would only agree to enroll her in something that she had a demonstrable need for, like [G.L.] has a need for a specialized school, or that Sheryl [Michels] and I agreed was a place that was going to better fit our idea of how we want to raise our kids.

As long as A.A. was thriving at Bryker Woods, and there was no demonstrable need to send her to a specialized private school, Zeifman would not agree to send A.A. to a private school other than the Austin Jewish Academy, a school with the religious affiliation in which the parties agreed A.A. was being raised.

To support her petition that a material and substantial change had occurred since the rendition of the original divorce decree, Michels offered evidence that in the years since the time of the parties' divorce, A.A. had grown "from an infant to a beautiful, smart, lovely 7-year old girl." She urged that A.A.'s academic abilities and opportunities had surpassed the expectations the parents had at the time of the divorce decree. In support of the modification order, Michels testified,

Q: At the time, did you have any idea that there would be an opportunity for her to attend St. Andrew's school?
A: No I did not.
. . . .
Q: What other--now other than the mere passage of physical time, have there been other changes that have occurred--significant changes that have occurred in either your life or in Mr. Zeifman's life?
A: I believe there have been significant changes.
Q: And could you tell the Court what those are.
A: In my life or--
Q: Well, let's start with your life.
A: Okay. Well, since the--since September of '97, that's been quite a bit of time, I think I've grown in a lot of ways. My children have grown up, and I've certainly learned from them. I've grown as a parent. Hopefully, as a big sister, as a daughter, as a friend, as a person, as a physician, as all of those things in these years of life experience. I think I'm happier and hopefully smarter.
Q: How has your daughter changed?
A: She's grown up from an infant to a beautiful, smart, lovely seven-year-old girl. She's proved herself to be social, a gymnast, a cheerleader, smart in school. Academically, she's very, very bright. She's basically grown up from an infant to a young child with extraordinary potential.
Q: And has she--at the time that she was 14 months old and you entered into this agreed divorce decree, did you have any idea for sure how she was going to turn out?
A: No.
. . . .
Q: And did you come to a--what about your daughter, did you have idea how smart she was going to be?
A: No. I had hoped, but I didn't know.

Michels acknowledged that her daughter was doing very well at Bryker Woods.

Much of the testimony adduced by Michels centered on St. Andrew's reputation as a high achieving school and the desirability of a child remaining in a single school through high school as she would be able to do at St. Andrew's. Michels's partner in her medical group testified that he served on the St. Andrew's board of trustees, that his children attended St. Andrew's, that the school sets a high academic standard and provides a diverse culture respectful of various religions, and that he is familiar with A.A. but has not "seen [her] in years, but I know who she is."

Education consultant Christopher Kocerik testified that he was first contacted by Michels on July 8, 2004. Michels advised him that "she had identified a school that she thought was best, and wanted me to concur if--or give my opinion on as to whether or not that was the best school for her." Michels told Kocerik that a "custody" matter was involved and that he might be called upon to testify. Kocerik did not investigate other schools or make a recommendation regarding schools. He testified, "She asked us to look at her daughter's needs, and look at the option of St. Andrew's." Kocerik concluded that St. Andrew's would be a "good match" and a "good opportunity" for A.A.

The lawyer who represented Michels in her divorce also testified on her behalf. She had observed A.A. since the divorce and testified that "she's grown up, she's become a lot more articulate and it is striking how bright she is." She also testified to the benefits of private school over public school. Lucy Nazro, the head of St. Andrew's, testified that, based upon A.A.'s test scores, she would do well at St. Andrew's. She explained that the school offers continuity through high school to its students as well as other opportunities not offered by the public schools such as public service opportunities, foreign languages, and ethics courses. Dr. Nazro testified that she had a telephone conversation with Zeifman in which they discussed the academics of the school and he inquired into the religious life of the school, particularly the practice of daily chapel.

Zeifman testified that he lives across the street from Bryker Woods and has remarried. Because he lives so close, he drops by the school once or twice a week and "bump[s] into the principal fairly often." He testified to his son's learning disability and that he and Michels agreed to deviate from the agreement to meet their son's special educational needs. Zeifman testified that A.A.'s academic and social needs were being met at Bryker Woods and that she was thriving there. When Michels rejected his suggestion that A.A. attend the Austin Jewish Academy and applied instead to St. Andrew's without his knowledge or consent, Zeifman insisted upon following the decree and having A.A. continue her education at Bryker Woods. He testified that the academics of the schools was never an issue: "You know, we're in a very good public school, and my daughter, as evidenced by all the results that have been admitted, has been pretty well served by whatever we're doing."

Casey Herrin, A.A.'s first-grade teacher testified that she had taught first grade at Bryker Woods for five years and that A.A. had been in her class. Herrin described A.A. as a "very pleasant, very bright" "typical first grader." She was among the top students in the class but had not been accepted for the gifted and talented program. Herrin testified that both parents were involved and concerned about their daughter's academic progress: "They both did make sure to frequently check with me to make sure she was progressing as she should be." A.A.'s stepmother was also involved at the school.

At Michels's request, Herrin had completed the recommendation form that accompanied A.A.'s application for admission to St. Andrew's. At the time of its submission, Herrin learned that Zeifman was not aware that Michels had asked her to fill out the recommendation. She knew that Michels was interested in sending her daughter to St. Andrew's: "And I felt like, obviously, this was something that her parents were going to decide, and that it was my obligation as her former teacher to go ahead and fill this out for her." Over the summer, probably in June, Michels asked for her assistance in helping the parents decide which school A.A. should attend. Herrin testified,

I told her that I'd have to think about it and get back to her. And when I eventually got back to her, I informed her that I thought it would be best if [she] stayed at Bryker Woods. . . . I felt like at one point both parents, obviously, agreed that Bryker Woods was a good school for [her]. And so I thought best just leave it alone. . . . I didn't feel like there was any strong need that wasn't being met at Bryker Woods.

Herrin testified that she told Michels that "I thought it would be best if A.A. stayed at Bryker Woods." They had no further conversations. In response to cross examination, Herrin testified that Zeifman expressed concerns to her that he thought Bryker Woods was a good school for his daughter and he had some concerns that St. Andrew's was a religiously affiliated school.
A Bryker Woods counselor and the principal also testified to the suitability of the school for A.A.'s needs and its standing in the academic community. The counselor testified that A.A.'s needs were "absolutely" met at the school and that her current second grade teacher was "one of the most highly professional teachers I've ever worked with." The principal testified that the school is a "wonderful little school" that is unique because it is a school of choice for half of its 378 enrolled students. The school was generally rated "exemplary" in its academic ranking by the Texas Educational Association but had dropped to "recognized" in the 2003/2004 year. He attributed the change to the addition of the science portion of the test. All of the other test scores had been in the exemplary range over the cut-off score of ninety percent. He testified that the school is a well-regarded school with extensive parental involvement and small class sizes. He knows most of the students by name and is familiar with A.A. He testified that she "seems like a great child" who gets along well with other students. He testified,

I feel that [she] is doing a fine job, you know, in second grade. I think that she has a wonderful classroom teacher, very caring classroom teacher, and a very experienced teacher. That's the other good thing that I will like to share also about Bryker Woods is we have very little teacher turnover. The teachers who have been there have been there for many, many years. . . . [I]t's a wonderful environment. It's a small school . . . a great place.

At the conclusion of the trial, the trial judge told the parties that she was "puzzled to have such an issue brought before this Court" and that she had "struggled listening to the testimony" that "veered off course in some ways" from the issues, stating,

I became extremely frustrated with the concept that I'm supposed to decide that St. Andrew's is better than the AISD school system for your child. Even if I accept that St. Andrew's is a premier school and better than AISD, is that really the issue? Because it really isn't about whether Harvard is better than UT. It really is about where the child will actually flourish. And I'm not sure I understand or know that answer. And I struggled all last evening with what my role was today. Am I supposed to tell you your child will be more successful at St. Andrew's, or your child will be more successful in the AISD School District.

Legal Sufficiency of the Evidence

The issue is whether the trial court's determination that there was a material and substantial change in circumstances was an abuse of discretion. Based on the evidence, we conclude that it was.

A court's determination as to whether a material and substantial change of circumstances has occurred is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.--Fort Worth 2003, no pet.). Evidence of a parent's subsequent marriage to another can constitute a relevant, material change of circumstances after rendition of the decree sought to be modified. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.--Waco 2000, pet. denied).

Likewise, change in the age of a child may constitute a material change. In re Davis, 30 S.W.3d 609, 615 (Tex. App.--Texarkana 2000, no pet.); see also Horne v. Hardwell, 533 S.W.2d 450, 452 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.). Increase in age alone is not a changed circumstance to justify modification unless changed needs are shown. E.g., Voros v. Turnage, 856 S.W.2d 759, 762 (Tex. App.--Houston [1st Dist.] 1993, writ denied); Randle v. Randle, 700 S.W.2d 314, 316-17 (Tex. App.--Houston [1st Dist.] 1985, no writ).

In any event, the cases finding a material change based on a change in the age of a child are distinguishable from this case. None of the cases in which a court found the change in the age of a child to support a modification included a negotiated agreement that specifically contemplated the change and provided a dispute resolution mechanism as in this case. To allow aging alone to constitute a material and substantial change in the face of the agreement would render both the agreement and the language of the statute meaningless.

Although courts have allowed changes to be proved in a variety of ways, they have consistently required that a change be proved and that it be shown to be substantial and material. See, e.g., Agraz, 143 S.W.3d at 554 (evidence that father not participating in raising children insufficient to show prior conditions or material change); London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (court compared financial circumstances of the affected parties at time of original order with circumstances at time modification sought finding changed circumstances); Echols, 85 S.W.3d at 479 (court found changed circumstances included aging of child, remarriages and additional children in both families); Considine, 726 S.W.2d at 255 (re-marriage by one party and relocation to Canada held insufficient). In Considine, this Court stated that "to prove that a material change of circumstances has occurred, the movant must demonstrate what conditions existed at the time of the entry of the prior order. Once such conditions have been established, the movant must show what material changes have occurred in the intervening period." 726 S.W.2d at 255. (1)

In that case, we concluded that a parent's remarriage and change of residence to Canada did not constitute a material and substantial change as to support the modification of conservatorship. Id.

Zeifman contends that there was no showing that the circumstances with respect to A.A.'s education have materially and substantially changed. We agree.

A.A. was an infant when the parties divorced and in second grade when the case was tried in October 2004. The change alleged in the petition was her application and admission to St. Andrew's. At trial, in response to specific questioning as to the change in circumstances, Michels testified only that the change was that A.A. had grown from an infant into a "beautiful, smart, lovely" seven-year-old and that her academic ability had surpassed Michels's expectations at the time of the divorce. At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. When a disagreement arose in the instance of their son's special educational needs, the parties resolved the change pursuant to the terms of the agreement.

The evidence showed that after the parties divorced they continued to raise A.A. in the Jewish faith and they continue to adhere to that faith. A.A. attends religious school at Congregation Agudas Achim and pursues other activities and camps sponsored by the Jewish Community Center. The parties agree she is being raised Jewish and is part of the Jewish community, as she has been since she was born. The modification sought specifically to allow Michels to send A.A. to St. Andrew's would mark a significant change in the child's secular and religious education. That Zeifman objected to A.A. attending a religious private school based upon a different faith is consistent with the parties' intent to specify these educational decisions in their agreement to anticipate and avoid such conflicts.

The evidence showed that A.A. is a bright and academically talented girl who is thriving at Bryker Woods, a school located across the street from her father's home. The undisputed evidence also showed that she did very well academically and socially at Bryker Woods, and that her academic and social needs were being met. The only evidence that she might do better at St. Andrew's or that it might be more "suitable" is speculative and, in any event, not sufficient to constitute a material and substantial change.

We do not agree that this evidence shows a change in circumstances as contemplated by section 156.101. See Tex. Fam. Code Ann. § 156.101. To accept Michels's interpretation of the requirement of a "material and substantial" change would render its language meaningless if age alone were sufficient in light of the parties' prior agreement. Although there may be a variety of methods of showing material and substantial change, the requirement is that a change must be shown. We conclude Michels's evidence is no evidence of a change in conditions. Even assuming that the St. Andrew's application and admission or A.A.'s change of age constituted changes not contemplated by the agreement, there was no evidence that either change was material or substantial.

Moreover, as in all suits regarding the conservatorship of a child, the court's primary consideration "shall always be the best interest of the child." Tex. Fam. Code Ann. § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). A court may use the nonexhaustive list of Holley factors to determine the child's best interest. Holley v. Adams, 554 S.W.2d 367, 371-71 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child, the stability of the home, the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id. at 371-72. In the context of custody modification, other factors to be considered include the child's need for stability and the need to prevent constant litigation in child-custody cases. V.L.K., 24 S.W.3d at 343.

The policy behind the requirement of a material and substantial change is to prevent constant relitigation with respect to children. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.--Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.) (requirement of material and substantial change predicated upon doctrine of res judicata as to best interest of child at time of original decree awarding conservatorship). When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Bates, 81 S.W.3d at 423. The requirement of this showing "serves a valid purpose of significantly limiting the trial judge's discretion and prevents the modification statute from being unconstitutionally broad." M.N.G., 113 S.W.3d at 34.

Although the trial court heard contradictory testimony about events that had occurred between the parties, the undisputed evidence established that A.A. was thriving at Bryker Woods under the educational plan agreed to in the divorce decree. Much of the testimony focused on the relative academic standing of the two schools as well as the advantages of a private school over a public school. Michels acknowledged that A.A. was doing very well at Bryker Woods and that she would not be harmed by staying at Bryker Woods. A.A.'s teacher, who provided the recommendation for her admission to St. Andrew's, testified that she believed that it would be in A.A.'s best interest to stay at Bryker Woods. There was no expert testimony or other evidence that the change in schools would be in A.A.'s best interest. Because A.A. was making good grades and thriving at Bryker Woods, and there was no evidence to show that it was in her best interest to change schools, a review of the record does not establish that the evidence is sufficient to support the trial court's findings.

At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.

We would be remiss if we did not observe that, with the passage of the Texas Alternative Dispute Resolution Act, it became public policy to "encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures." Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2005). It would undermine the efforts of mediated settlement agreements for us to allow a modification on circumstances that were clearly contemplated by the parties at the time of the rendition of the original divorce decree. We also observe, however, that the existence of a mediated settlement agreement does not alter the requirements of section 156.101; we hold only that, on the record before us, the petitioner failed to carry her burden of demonstrating a material and substantial change of circumstances and that the modification would be in the best interest of the child. See Tex. Fam. Code Ann. § 156.101. (2)

CONCLUSION

We conclude that the evidence is legally insufficient to support the trial court's finding that the circumstances of the child, as specifically alleged in the petition, or of either conservator have materially and substantially changed. We hold that, based on the record before us, the trial court abused its discretion in ordering modification. We sustain appellant's challenge to the legal sufficiency of the modification. We reverse the trial court's order to modify and render judgment in favor of Zeifman.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Pemberton: Opinion by Justice Patterson;
Concurring Opinion by Justice Pemberton
Reversed and Rendered
Filed: August 4, 2006

1. For the trial court to determine if a material and substantial change has occurred, most courts require a comparison between the original circumstances of the child and the affected parties at the time the existing order was entered with their circumstances at the time the modification is sought. E.g., London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Thus, the record must contain both historical and current evidence of the relevant circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a change has occurred. Id. at 144-45.
2. Because of our disposition of the legal sufficiency issue, we need not address the remaining issues regarding factual sufficiency.