SAPCR-Relocation: In this modification suit, the trial court imposed a geographic restriction for the child's residence and ordered joint custody when the custodial parent wanted to move to another state. Court did not buy mother's claim that relocation was necessary to avoid allergens in Austin, where no evidence of a diagnosis was offered and mother allowed animals in the residence contrary to doctor's advice. Court changed other aspects of the parent-child relationship, including amount of visitation, decision-making re: medical treatment, and child support. Austin Court of Appeals affirmed.
Michele Brkich formerly known as Michele Woodall v. Jeffrey Daren Woodall, No. 03-06-00010-CV, (Tex.App.- Austin, Nov. 2, 2006)(Opinion by Justice Smith)(modification of custody and child support, relocation, geographical restriction on primary residence)(Before Justices Puryear, Waldrop and Smith)
Appeal from 395th District Court of Williamson County
Also see concurring opinion by Justice Puryear
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
NO. 99-1003-F368-395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE BEA ANN SMITH
Michelle Brkich and Jeffrey Woodall divorced on October 14, 1999. In the divorce decree, the court appointed Brkich sole managing conservator of the couple's two children, R.E.W. and M.S.W., giving her the right to determine the children's primary residence anywhere within the United States. Woodall was appointed possessory conservator, ordered to pay child support, and ordered to pay one hundred percent of the children's uninsured medical expenses.
In December 2004, after learning of Brkich's plans to move with the children to Boise, Idaho, Woodall filed a motion to modify the divorce decree. He asked that the district court appoint him joint managing conservator along with Brkich, appoint him the parent with the right to establish the primary residence of the children or the right to make medical decisions on the children's behalf, modify child support accordingly, grant him extended possession, and impose a geographical restriction limiting the children's primary residence to Williamson and contiguous counties.
Brkich opposed these requests and in turn moved to increase child support payments in light of Woodall's increased income. The court modified the decree by increasing child support as Brkich requested, appointing Woodall and Brkich joint managing conservators, restricting the primary residence of the children to Williamson and contiguous counties, granting Woodall extended possession, ordering Woodall and Brkich to each pay one-half of the children's uninsured medical expenses, ordering each parent to give 72-hours' notice of the children's routine medical appointments and one-hour's notice of emergency medical treatment to the other parent, and ordering the children to attend six months of therapy. Brkich appeals the modifications relating to conservatorship, possession and access, and the geographic restriction on the children's residency. We will affirm the trial court's order.
BACKGROUND
Woodall argued at the hearing that the divorce decree should be modified because of his continuous involvement in the children's lives following the divorce. He testified that he exercises all his periods of possession, that he attends most of R.E.W.'s baseball practices and games, and that he is involved with M.S.W.'s activities to the extent he is able.
Woodall also argued that he is concerned that some of the more aggressive medical testing Brkich seeks for their son R.E.W. is not in his best interest. R.E.W., now nine years old, has been diagnosed with chronic sinusitis and asthma. He also suffers from persistent respiratory problems, leading doctors to believe that he has allergies, although he has tested negative for allergies in multiple tests. Dr. John Nowlin, a pediatric ear, nose, and throat surgeon, testified that he has operated on R.E.W. nine times, including an adenoidectomy, insertion of several sets of ear tubes, and multiple sinus surgeries.
Woodall is concerned about the many tests for obscure diseases suggested by Brkich. Among the tests objected to by Woodall were a second test for lupus after the first one proved negative, a second test for cystic fibrosis after a negative test, a test for juvenile rheumatoid arthritis stemming from a complaint of knee pain, and a test for Kawasaki's disease. Woodall claims that R.E.W.'s doctors take Brkich's assessments at face value because she is a nurse.
Brkich testified that she planned to move with the children to Boise to get away from the allergens plaguing her and the children in the Austin area. Woodall testified that he thought Brkich chose Boise to be closer to her parents in Medicine Hat, Alberta. Brkich testified that she had not consulted any allergists in Boise, although she had researched general information on Boise's climate and pollution index.
Brkich appeals the trial court's orders designating her and Woodall joint managing conservators, granting Woodall extended possession, and imposing a geographical restriction limiting the primary residence of the children to Williamson and contiguous counties. (1) Brkich raises two issues regarding those modifications. First, she argues that Woodall presented legally and factually insufficient evidence to support the trial court's finding of a material and substantial change in circumstances since the entry of the divorce decree and its finding that a modification would be in the best interest of the children. See Tex. Fam. Code Ann. § 156.101 (West Supp. 2006). Brkich contends that the trial court abused its discretion by making these findings. Second, she argues that the trial court abused its discretion by ordering the geographic restriction on the children's residence.
STANDARD OF REVIEW
Where, as here, sufficiency-of-the-evidence and abuse-of-discretion standards overlap, as often occurs in family law cases, appellate courts employ a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.). In reviewing the legal sufficiency of the evidence, we credit favorable evidence if a reasonable fact-finder could, and we disregard contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must affirm the trial court if the evidence presented would allow a reasonable fact-finder to make the judgment under review. Id. In reviewing the factual sufficiency of the evidence, we examine all the evidence and reverse only if the trial court's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951).
A trial court's modification order will not be reversed in the absence of an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Echols, 85 S.W.3d at 477. A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985); Echols, 85 S.W.3d at 477. The fact that a trial court may decide a matter within its discretionary authority differently than an appellate court would in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 241-42; Echols, 85 S.W.3d at 477.
An abuse of discretion does not occur as long as some evidence of a probative character exists to support the trial court's decision. Echols, 85 S.W.3d at 477.
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 that discretion. Id. at 477-78. The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Id. at 478. The appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
DISCUSSION
In her first issue, Brkich contends that the district court abused its discretion in modifying the divorce decree because the evidence presented at the hearing was legally and factually insufficient to support findings that there has been a material and substantial change in circumstances since the divorce decree was entered and that a modification would be in the children's best interest. A conservatorship may be modified if the party requesting the modification shows that the circumstances of a child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order and that modification would be in the best interest of the child. Tex. Fam. Code Ann. § 156.101.
Material and Substantial Change in Circumstances
The trial court made the following finding of fact: "1. The circumstances of the children, or one of the parents have materially and substantially changed since the date of the Decree of Divorce." Though the trial court did not specify which circumstance had changed or for whom, it made an implied finding of at least one specific change in circumstances. Thus we will affirm if this finding can be supported by any legal theory. See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (holding that trial court judgments should be affirmed if any legal theory supports implied fact findings).
Woodall argues that Brkich's intended relocation of the children to another state constitutes a substantial change in circumstances. Our sister court in El Paso has articulated a number of nonexclusive factors to determine whether a relocation establishes a material and substantial change in circumstances. See Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.--El Paso 2002, no pet.).
The factors are: the distance involved; the quality of the relationship between the noncustodial parent and the children; the nature and quality of the children's contacts with the noncustodial parent; whether relocation would deprive the noncustodial parent of regular and meaningful access to the children; the impact of the move on the quantity and quality of the children's future contacts with the noncustodial parent; the motive for the move; the motive for opposing the move; the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements; and the proximity, availability, and safety of travel arrangements. Id.
The distance between Austin and Boise is approximately 1,400 miles. Woodall testified that he exercises all his visitation periods, attends most of R.E.W.'s baseball games and practices, and is as involved with M.S.W.'s activities as he can be. Brkich herself testified that Woodall is quite involved in his children's lives and that the children are attached to him. During the five years between the divorce and Woodall's modification suit, the children saw their father regularly and he lived nearby. Brkich's proposed relocation would deprive Woodall of his right to visitation with the children on Wednesdays, as the divorce decree authorizes these periods of visitation for parents who reside 100 or fewer miles apart, but not for parents who reside more than 100 miles apart. The move would also make exercising Woodall's other periods of visitation more time-consuming and expensive.
Brkich testified that round-trip tickets from Boise to Austin were available for around $200. She also testified that she did not believe that the children could fly unaccompanied. Brkich suggested that R.E.W. and M.S.W. could fly to Texas with her husband, who would be flying to San Antonio once a month to see his son.
The motive for the move is disputed. Woodall claims that Brkich wants to move to Boise to be close to her parents in Canada. Brkich states that she wants to move to Boise to escape the allergens in Austin that are causing her and her children to suffer. However, R.E.W., whose health was the focus of much of the testimony at the hearing, has never tested positive for allergies. Brkich testified that she did not contact an allergist in Boise nor research the specific allergens that are prevalent in Boise. She stated that she relied on statements from doctors that for allergies, almost anywhere is better than Austin. Also, Brkich allows two cats and a rabbit to stay inside the house where R.E.W. lives, over the objection of R.E.W.'s primary care physician. There was no evidence presented at the hearing that the motive for Woodall's opposition to Brkich's intended relocation is anything other than concern for his relationship with the children and their well-being.
On these facts, we hold that the trial court did not abuse its discretion in finding that a material and substantial change in circumstances of the parents and children had occurred since the
entry of the divorce decree.
Best Interest
The trial court also made fact findings that each of the modifications it ordered was in the children's best interest. In the remainder of her first issue, Brkich argues that there was legally and factually insufficient evidence to support a finding that a modification regarding conservatorship would be in the best interest of the children, and that the trial court abused its discretion in so finding. Brkich argues in her second issue that the trial court abused its discretion in imposing the residency restriction. We will address these issues together, dealing with each modification in turn.
The Texas Supreme Court has identified a number of nonexclusive factors to be considered in determining the best interest of children. See Holley v. Adams, 544 S.W.2d 367, 371-372 (Tex. 1976). The factors include: the desires of the children, the emotional and physical needs of the children now and in the future, the emotional and physical danger to the children now and in the future, the parental abilities of the individuals seeking custody, the plans for the children by the parents, the stability of the home, the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parents. Id.
Our review must give deference to the trial court's credibility determinations because it was able to observe the demeanor of the witnesses. In re De la Pena, 999 S.W.2d 521, 526 (Tex. App.--El Paso 1999, no pet.). An abuse of discretion normally does not occur when the trial court bases its decision on conflicting evidence. In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).
With regard to Brkich's intended relocation, the trial court heard testimony that Woodall is involved in R.E.W. and M.S.W.'s lives, and that the children are attached to him. The trial court also received evidence that the frequency of Woodall's visitation with his children would inevitably decrease if Brkich were to move with them to Boise. Evidence was presented that R.E.W. has never tested positive for allergies, although his doctors believe that allergies are at least partially to blame for his chronic sinus difficulties. However, Brkich allows two cats and a rabbit to stay inside her home where R.E.W. lives, over his doctor's objections. Also, Brkich did not investigate allergens in Boise; instead she relied on general statements that almost anywhere is better than Austin when it comes to allergies. Based on this evidence, the trial court could reasonably have concluded that maximizing the children's time with their father was more important than any health benefits the children may or may not have realized by the move, and that imposing a geographical restriction on the primary residence of the children was in the children's best interest. The trial court did not abuse its discretion by imposing the restriction.
The increase in Woodall's visitation rights is minimal. It allows him to convert more of his visitation periods to overnight visitation than under the original divorce decree. This modification was not the subject of argument at the hearing nor is it specifically mentioned in Brkich's brief. The facts that Woodall is involved in his children's lives and that they are attached to him provide sufficient evidence that this modification was in the best interest of the children. The trial court did not abuse its discretion by granting Woodall extended visitation.
The final modification Brkich complains of is the appointment of both parents as joint managing conservators, replacing Brkich's sole managing conservatorship. We note that the trial court did not remove Brkich's power to determine the children's primary residence, although it imposed the geographic restriction discussed above. Also, the court did not order a significant increase in Woodall's visitation, but increased the amount of child support Woodall pays Brkich. The main change between Brkich's sole managing conservatorship and the joint managing conservatorship is that now both parents have joint control over medical decisions for the children.
The court heard evidence of Brkich's aggressive medical testing of R.E.W. Although R.E.W.'s doctors testified that Brkich did not request that any procedures be performed that were not medically necessary, R.E.W.'s primary care physician testified that Brkich "becomes alarmed more easily than other people." Dr. Nowlin testified that Woodall had "very reasonable questions" about the testing and treatment of R.E.W. Woodall testified that he believes the interventions Brkich seeks for R.E.W. go too far, and that Woodall would ask for a second opinion and generally treat R.E.W. as a normal child rather than a sick child. Deferring to the trial court's credibility determinations, it could have reasonably found that allowing Woodall to act as a balance to Brkich by giving them both decisionmaking power over the children's medical treatment would be in the children's best interest. This could be accomplished by naming the parents joint managing conservators. The trial court did not abuse its discretion in appointing Woodall and Brkich joint managing conservators.
CONCLUSION
Because we overrule all of Brkich's issues on appeal, we affirm the trial court's order modifying conservatorship.
______________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Puryear and Waldrop: Opinion by Justice B. A. Smith; Concurring Opinion by Justice Puryear
Affirmed
Filed: November 2, 2006
1. Brkich does not appeal the orders that she pay one-half of the children's uninsured medical expenses, providing for stricter notice relating to medical appointments, or that the children attend therapy. Woodall does not appeal the increased child support or any of the order's other provisions.
Saturday, August 25, 2007
SAPCR-MTM: Wrencher v. Wrencher (Tex.App.- Austin 2007)
In this suit to modify multiple aspects of a prior SAPCR order, including the designation of the parent with the right establish the child's primary residence, the respondent filed and prevailed with a motion for no-evidence summary judgment. The pro-se petitioner failed to proffer evidence of the requisite material and substantial change element. The court also overruled petitioner's complaint about being denied a jury trial, and about the judge impermissibly practicing law from the bench by suggesting (by implication, if not expressly) that repondent file the summary judgment motion.
Vincent Wrencher v. Stephanie Wrencher, No. 03-06-00434-CV (Tex.App.- Austin, May 16, 2007)(mem. op.)(Opinion by Justice Waldrop)(disposition of suit for modification of child custody, support, etc. by summary judgment affirmed)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-03-006102, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Vincent Wrencher, proceeding pro se, brings this appeal from a no evidence summary judgment granted in favor of appellee Stephanie Wrencher concerning Vincent's motion to modify the Wrencher's divorce decree in a suit affecting the parent-child relationship. We affirm.
Vincent Wrencher and Stephanie Wrencher were divorced on August 18, 2004, and the final divorce decree entered by the trial court reflected the agreement of the parties. In September and November 2004, Vincent filed motions to modify certain terms of the divorce decree, including the provisions for child support and the right to designate the primary residence of their child, Vincent Wrencher, Jr. The trial court conducted hearings in September 2004 and January 2005 that resulted in the denial of Vincent's motions.
On April 8, 2005, Vincent filed a Petition to Modify Parent-Child Relationship that is the subject of this suit. He requested, among other things, the right to designate the primary residence of the child, modification of the joint custody arrangement, modification of child support, modification of the child's day care arrangement, and a child support credit. The petition also included a motion to compel a mental examination of Stephanie and a motion to enter corrections on the order entered by the trial court in January 2005.
A trial on the merits was set on the jury docket for February 26, 2006, and Vincent filed a proposed disposition of issues prior to that date. On Stephanie's motion, the trial was continued and rescheduled for May 8, 2006. Vincent did not file a proposed disposition of issues for the May trial setting.
On May 3, the trial judge removed the case from the jury docket and scheduled a pre-trial conference for May 10. The purpose of the conference was to determine the sufficiency and timeliness of Vincent's proposed disposition of issues for the second trial setting. At the conference, the judge determined that the proposed disposition of issues submitted by Vincent prior to the first trial setting in February 2006 could also be used for a second trial setting. However, he also ruled, in accordance with an order proposed by Stephanie's counsel, that there was no evidence of a material change in the circumstances of either parent or of the child that would justify holding a hearing for modification. On May 11, Vincent filed a motion for new trial requesting the court to void the ruling of the pre-trial conference and "send this case to the Jury."
On May 16, Judge Yelenosky sent a letter to Vincent and to Stephanie's counsel that provided in relevant part:
The proposed order presented by [Stephanie's counsel] correctly states my ruling. Upon reflection, however, I have concluded that the ruling amounts to granting a no-evidence summary judgment motion when none has been filed. Since Mr. Wrencher has requested a jury, I cannot remove a factual dispute from their consideration except upon a proper motion.
All that was properly before me at [the] pretrial conference was the sufficiency and timeliness of Mr. Wrencher's Proposed Disposition of Issues. I found that the Proposed Disposition filed for the first trial setting sufficed.
Since I have not signed an order, Mr. Wrencher's Motion for New Trial is moot.
On June 30, 2006, Stephanie filed a no evidence motion for summary judgment alleging that "there is no evidence of [m]aterial and substantial change in circumstances, on which [Vincent] has the burden of proof at trial." (1) Vincent presented no evidence to counter Stephanie's motion for summary judgment, and the trial court granted summary judgment in favor of Stephanie.
Vincent's issues on appeal can be grouped into the following general issues: that the trial court erred by (1) advising Stephanie to file a no evidence motion for summary judgment; (2) rendering summary judgment in favor of Stephanie; and (3) removing the case from the jury docket.
Vincent contends that the trial judge violated the code of judicial conduct by "giving advice" to Stephanie in his May 16 letter. In the letter, Judge Yelenosky addressed his ruling at the pre-trial conference that Vincent was not entitled to a modification hearing and concluded "the ruling [in the pre-trial conference] amounts to granting a no-evidence summary judgment motion when none has been filed. Since Mr. Wrencher has requested a jury, I cannot remove a factual dispute from their consideration except upon a proper motion." Vincent contends that this letter advised Stephanie to file a no evidence motion for summary judgment and, therefore, violated canon 4(G) of the code of judicial conduct, which prohibits judges from practicing law except in certain situations not implicated here. See Tex. Code Jud. Conduct, Canon 4(G), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. B (West 2005).
Our review of the May 16 letter does not indicate that the trial judge was practicing law or giving legal advice to Stephanie in any way. Instead, the letter reflects that the judge reconsidered his ruling at the pre-trial conference to protect Vincent's request for a jury trial. His statement "I cannot remove a factual dispute from [the jury's] consideration except upon proper motion" was an accurate statement of the law, and the letter did not direct either side to take further action in the case. Thus, we conclude that the trial judge's letter to the parties did not violate the code of judicial conduct.
Vincent also contends that the trial court erred by granting summary judgment in favor of Stephanie. A party may move for summary judgment on the ground that there is "no evidence" of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact. See id. We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A no evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Vincent asserts that his written response to Stephanie's no evidence motion for summary judgment was adequate summary judgment evidence. We disagree. Proper summary judgment proof consists of admissions, affidavits, stipulations of parties, authenticated or certified public records, deposition transcripts, and interrogatory answers. See Tex. R. Civ. P. 166a(c). Pleadings alone, even if sworn, are not summary judgment evidence. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
In this case, although Vincent filed a response to Stephanie's no evidence motion for summary judgment in which he listed numerous documents and records under the heading "Summary Judgment Evidence," he did not, in fact, attach to his response any of this evidence or direct the court to where it could be found in the record. Summary judgment proof must be either attached to the summary judgment motion or response, MBank Brenham v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986), or a notice containing specific references to the material to be used is filed and served on all parties with a statement of intent to use the specified material as summary judgment evidence. See Tex. R. Civ. P. 166a(c).
It is not the court's duty to search the record for evidence raising a fact issue. King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.--Dallas 2006, no pet.). Thus, because Vincent did not direct the court to evidence in the record raising a genuine issue of material fact, summary judgment in favor of Stephanie was proper. See Paull v. Capital Resource Mgmt., Inc., 987 S.W.2d 214, 221 (Tex. App.--Austin 1999, pet. denied).
Vincent also contends that Stephanie did not present legally sufficient evidence in support of her motion for summary judgment. However, under the rules of civil procedure, when, as here, a party moves for summary judgment on the grounds that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial, the movant does not need to produce any summary judgment evidence. See Tex. R. Civ. P. 166a(i). Instead, the motion must state the elements as to which there is no evidence. See id. In this case, Stephanie alleged in her motion for summary judgment that "[t]here is no evidence of [m]aterial and substantial change in circumstances, on which [Vincent] has the burden of proof at trial." She was not, as Vincent suggests, required by rule 166a(i) to submit evidence in support of her motion. Instead, the burden was on Vincent to present summary judgment evidence raising a fact issue as to whether there had been a material change in circumstances. See id. He did not produce any such evidence. Thus, the trial court properly entered summary judgment in favor of Stephanie.
Lastly, Vincent contends that "removing the case from the jury's consideration violated [his] right to a jury trial on an issue of fact." We disagree. The right to a jury trial in civil cases is not absolute. Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex. App.--Dallas 2005, pet. denied). The summary judgment process provides a method of terminating a case when only questions of law are involved and when there are no genuine issues of fact. Id. This process will not deprive litigants of a jury trial where material questions of fact exist. Id. However, when no material issues of fact exist to submit to a jury, the granting of summary judgment will not violate a party's constitutional right to a jury trial. King, 205 S.W.3d at 734.
In this case, if Vincent had produced summary judgment evidence raising a genuine issue of material fact, the factual dispute would have been submitted to a jury in accordance with Vincent's request for a jury trial. King Ranch, Inc., 118 S.W.3d at 751. However, because Vincent presented no evidence in response to Stephanie's no evidence motion for summary judgment, the case was properly terminated by the summary judgment process. See Tex. R. Civ. P. 166a(i); Bliss, 162 S.W.3d at 437. In other words, there were no issues of material fact to submit to the jury. Thus, removing the case from the jury docket was proper and did not violate Vincent's constitutional right to a jury trial. See King, 205 S.W.3d at 734.
Affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 16, 2007
1. Section 156.101 of the Texas Family Code provides in relevant part:
The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed . . . .
Tex. Fam. Code Ann. § 156.101 (West Supp. 2006).
Vincent Wrencher v. Stephanie Wrencher, No. 03-06-00434-CV (Tex.App.- Austin, May 16, 2007)(mem. op.)(Opinion by Justice Waldrop)(disposition of suit for modification of child custody, support, etc. by summary judgment affirmed)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-03-006102, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Vincent Wrencher, proceeding pro se, brings this appeal from a no evidence summary judgment granted in favor of appellee Stephanie Wrencher concerning Vincent's motion to modify the Wrencher's divorce decree in a suit affecting the parent-child relationship. We affirm.
Vincent Wrencher and Stephanie Wrencher were divorced on August 18, 2004, and the final divorce decree entered by the trial court reflected the agreement of the parties. In September and November 2004, Vincent filed motions to modify certain terms of the divorce decree, including the provisions for child support and the right to designate the primary residence of their child, Vincent Wrencher, Jr. The trial court conducted hearings in September 2004 and January 2005 that resulted in the denial of Vincent's motions.
On April 8, 2005, Vincent filed a Petition to Modify Parent-Child Relationship that is the subject of this suit. He requested, among other things, the right to designate the primary residence of the child, modification of the joint custody arrangement, modification of child support, modification of the child's day care arrangement, and a child support credit. The petition also included a motion to compel a mental examination of Stephanie and a motion to enter corrections on the order entered by the trial court in January 2005.
A trial on the merits was set on the jury docket for February 26, 2006, and Vincent filed a proposed disposition of issues prior to that date. On Stephanie's motion, the trial was continued and rescheduled for May 8, 2006. Vincent did not file a proposed disposition of issues for the May trial setting.
On May 3, the trial judge removed the case from the jury docket and scheduled a pre-trial conference for May 10. The purpose of the conference was to determine the sufficiency and timeliness of Vincent's proposed disposition of issues for the second trial setting. At the conference, the judge determined that the proposed disposition of issues submitted by Vincent prior to the first trial setting in February 2006 could also be used for a second trial setting. However, he also ruled, in accordance with an order proposed by Stephanie's counsel, that there was no evidence of a material change in the circumstances of either parent or of the child that would justify holding a hearing for modification. On May 11, Vincent filed a motion for new trial requesting the court to void the ruling of the pre-trial conference and "send this case to the Jury."
On May 16, Judge Yelenosky sent a letter to Vincent and to Stephanie's counsel that provided in relevant part:
The proposed order presented by [Stephanie's counsel] correctly states my ruling. Upon reflection, however, I have concluded that the ruling amounts to granting a no-evidence summary judgment motion when none has been filed. Since Mr. Wrencher has requested a jury, I cannot remove a factual dispute from their consideration except upon a proper motion.
All that was properly before me at [the] pretrial conference was the sufficiency and timeliness of Mr. Wrencher's Proposed Disposition of Issues. I found that the Proposed Disposition filed for the first trial setting sufficed.
Since I have not signed an order, Mr. Wrencher's Motion for New Trial is moot.
On June 30, 2006, Stephanie filed a no evidence motion for summary judgment alleging that "there is no evidence of [m]aterial and substantial change in circumstances, on which [Vincent] has the burden of proof at trial." (1) Vincent presented no evidence to counter Stephanie's motion for summary judgment, and the trial court granted summary judgment in favor of Stephanie.
Vincent's issues on appeal can be grouped into the following general issues: that the trial court erred by (1) advising Stephanie to file a no evidence motion for summary judgment; (2) rendering summary judgment in favor of Stephanie; and (3) removing the case from the jury docket.
Vincent contends that the trial judge violated the code of judicial conduct by "giving advice" to Stephanie in his May 16 letter. In the letter, Judge Yelenosky addressed his ruling at the pre-trial conference that Vincent was not entitled to a modification hearing and concluded "the ruling [in the pre-trial conference] amounts to granting a no-evidence summary judgment motion when none has been filed. Since Mr. Wrencher has requested a jury, I cannot remove a factual dispute from their consideration except upon a proper motion." Vincent contends that this letter advised Stephanie to file a no evidence motion for summary judgment and, therefore, violated canon 4(G) of the code of judicial conduct, which prohibits judges from practicing law except in certain situations not implicated here. See Tex. Code Jud. Conduct, Canon 4(G), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. B (West 2005).
Our review of the May 16 letter does not indicate that the trial judge was practicing law or giving legal advice to Stephanie in any way. Instead, the letter reflects that the judge reconsidered his ruling at the pre-trial conference to protect Vincent's request for a jury trial. His statement "I cannot remove a factual dispute from [the jury's] consideration except upon proper motion" was an accurate statement of the law, and the letter did not direct either side to take further action in the case. Thus, we conclude that the trial judge's letter to the parties did not violate the code of judicial conduct.
Vincent also contends that the trial court erred by granting summary judgment in favor of Stephanie. A party may move for summary judgment on the ground that there is "no evidence" of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact. See id. We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A no evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Vincent asserts that his written response to Stephanie's no evidence motion for summary judgment was adequate summary judgment evidence. We disagree. Proper summary judgment proof consists of admissions, affidavits, stipulations of parties, authenticated or certified public records, deposition transcripts, and interrogatory answers. See Tex. R. Civ. P. 166a(c). Pleadings alone, even if sworn, are not summary judgment evidence. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
In this case, although Vincent filed a response to Stephanie's no evidence motion for summary judgment in which he listed numerous documents and records under the heading "Summary Judgment Evidence," he did not, in fact, attach to his response any of this evidence or direct the court to where it could be found in the record. Summary judgment proof must be either attached to the summary judgment motion or response, MBank Brenham v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986), or a notice containing specific references to the material to be used is filed and served on all parties with a statement of intent to use the specified material as summary judgment evidence. See Tex. R. Civ. P. 166a(c).
It is not the court's duty to search the record for evidence raising a fact issue. King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.--Dallas 2006, no pet.). Thus, because Vincent did not direct the court to evidence in the record raising a genuine issue of material fact, summary judgment in favor of Stephanie was proper. See Paull v. Capital Resource Mgmt., Inc., 987 S.W.2d 214, 221 (Tex. App.--Austin 1999, pet. denied).
Vincent also contends that Stephanie did not present legally sufficient evidence in support of her motion for summary judgment. However, under the rules of civil procedure, when, as here, a party moves for summary judgment on the grounds that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial, the movant does not need to produce any summary judgment evidence. See Tex. R. Civ. P. 166a(i). Instead, the motion must state the elements as to which there is no evidence. See id. In this case, Stephanie alleged in her motion for summary judgment that "[t]here is no evidence of [m]aterial and substantial change in circumstances, on which [Vincent] has the burden of proof at trial." She was not, as Vincent suggests, required by rule 166a(i) to submit evidence in support of her motion. Instead, the burden was on Vincent to present summary judgment evidence raising a fact issue as to whether there had been a material change in circumstances. See id. He did not produce any such evidence. Thus, the trial court properly entered summary judgment in favor of Stephanie.
Lastly, Vincent contends that "removing the case from the jury's consideration violated [his] right to a jury trial on an issue of fact." We disagree. The right to a jury trial in civil cases is not absolute. Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex. App.--Dallas 2005, pet. denied). The summary judgment process provides a method of terminating a case when only questions of law are involved and when there are no genuine issues of fact. Id. This process will not deprive litigants of a jury trial where material questions of fact exist. Id. However, when no material issues of fact exist to submit to a jury, the granting of summary judgment will not violate a party's constitutional right to a jury trial. King, 205 S.W.3d at 734.
In this case, if Vincent had produced summary judgment evidence raising a genuine issue of material fact, the factual dispute would have been submitted to a jury in accordance with Vincent's request for a jury trial. King Ranch, Inc., 118 S.W.3d at 751. However, because Vincent presented no evidence in response to Stephanie's no evidence motion for summary judgment, the case was properly terminated by the summary judgment process. See Tex. R. Civ. P. 166a(i); Bliss, 162 S.W.3d at 437. In other words, there were no issues of material fact to submit to the jury. Thus, removing the case from the jury docket was proper and did not violate Vincent's constitutional right to a jury trial. See King, 205 S.W.3d at 734.
Affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 16, 2007
1. Section 156.101 of the Texas Family Code provides in relevant part:
The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed . . . .
Tex. Fam. Code Ann. § 156.101 (West Supp. 2006).
Friday, August 17, 2007
Tortious interference suit against out-of-state step-mother dismissed for want of personal jurisdiction
Curtis L. Marsh v. Sharon Marsh, No. 08-06-00165-CV (Tex.App.- El Paso, Aug. 16, 2007)(Opinion by Justice McClure)(dismissal on special appearance affirmed) (Before Chief Justice Chew, Justices McClure and Carr)
Appeal from 160th District Court of Dallas County
OPINION BY JUSTICE ANN CRAWFORD McCLURE
Curtis L. Marsh appeals from an order granting Sharon Marsh's special appearance and dismissing the cause of action with prejudice to re-filing in Texas. Finding no error, we affirm.
FACTUAL SUMMARY
Curtis Marsh, a Texas attorney, sued his stepmother, Sharon Marsh, for tortious interference with business and contractual relationships, tortious interference with prospective business relationships, slander and defamation, invasion of privacy, and intentional infliction of emotional distress. All of the claims arise from Curtis' efforts to purchase an Illinois title company owned by his father and Sharon's alleged interference with the purchase.
Curtis was raised in Tuscola, Illinois but he has practiced law in Dallas, Texas since 1985. (1) His father, Rick Marsh, owns a Tuscola title business, Douglas County Abstract Company, Inc. The title company has been in the Marsh family since the early 1900's. Sharon has worked for the company since the 1970's. The record does not reflect when Sharon married Rick Marsh.
Sometime in 2003, Rick telephoned Curtis and expressed a desire to retire in about a year. Rick wanted the title company to stay in the family and he offered to sell the business to Curtis for $500,000. Curtis accepted, and he had several other conversations with his father about the purchase and Curtis' planned relocation to Tuscola. Curtis intended to establish a law practice in Tuscola and he was considering "taking over" the bench for a district judge who was retiring. During the summer of 2004, Curtis and his family began making preparations to relocate and they planned to look for a house during a Thanksgiving trip to Tuscola.
On September 21, 2004, Sharon telephoned Curtis' wife because Sharon had just learned that Curtis had agreed to take over the title company and that they were planning on looking at houses at Thanksgiving. Sharon was livid and she asked Jamie not to tell Curtis or Rick about their conversation. Sharon attempted to discourage Jamie from moving to Tuscola. She also inquired about the purchase price of the title company and their financial situation, including how much Curtis earned in his law practice in Dallas. Sharon told Jamie that Rick had made the decision to sell the business without her knowledge or consent and she would not sacrifice her standard of living by allowing the business to be sold to Curtis. Finally, Sharon told Jamie that Curtis could not make a living in Tuscola and they were not welcome there. Based on this conversation, Jamie told Curtis that she would not move to Illinois.
Rick called Curtis later the same day and told him that Sharon had learned of his plans to sell the business and because she objected, he could not sell it to Curtis for $500,000. Rick informed Curtis that Sharon owned one-half of the business and he would want significantly more money if and when he decided to sell it. According to Curtis, his father has not spoken to him since that day. Sharon filed a special appearance supported by her affidavit. Curtis responded with his own affidavit and Jamie's affidavit. The parties entered into a Rule 11 agreement that, for purposes of the special appearance only, the defendant would assume that the substance of the conversation between Jamie Marsh and Sharon Marsh which took place on September 21, 2005 (2) was true as alleged in plaintiff's first amended petition and in Jamie's affidavit. (3) The docket sheet reflects that on March 9, 2006, the trial court conducted a hearing on the special appearance during which Curtis appeared in person and Sharon's attorney appeared by telephone.
The appellate record does not include a transcription of the hearing. Presumably, the hearing was non-evidentiary and the trial court considered only the evidence filed with the clerk. See Michiana Easy Livin' Country v. Holten, 168 S.W.3d 777, 782-83 (Tex. 2005). Our presumption is supported by the trial court's order on the special appearance which indicates that the court considered Sharon's special appearance, brief and affidavit offered in support of her special appearance, the affidavits of Jamie and Curtis Marsh, Curtis' response to the special appearance, the pleadings, and the arguments and authorities of counsel. The court granted the special appearance and dismissed the suit on April 11, 2006. Curtis filed a timely notice of appeal.
SPECIAL APPEARANCE
In his sole issue for review, Curtis challenges the order granting the special appearance and dismissing his suit.
Standard of Review
The plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident
defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). The nonresident defendant then assumes the burden of negating all bases of jurisdiction in those allegations. Id.
Whether a trial court has personal jurisdiction over a defendant is a question of law, which we review de novo. Id. at 794. (4) However, the trial court frequently must resolve questions of fact before deciding the question of jurisdiction. Id. If a trial court enters an order denying a special appearance, and the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. Id. When, as here, the trial court does not issue findings of facts and conclusions of law with its special appearance ruling, all fact findings necessary to support the judgment and supported by the evidence are implied. Id. at 795.
Waiver of Special Appearance
We first consider Curtis' argument that Sharon waived her special appearance by (1) failing to verify her special appearance as required by Rule 120a, and (2) by setting her special exceptions for hearing on December 12, 2005 prior to a hearing on the special appearance.
Sharon filed an unsworn special appearance on October 14, 2005. On October 31, 2005, she filed her affidavit which, among other things, verified the special appearance previously filed by her attorney. Rule 120a(1) of the Rules of Civil Procedure requires that a special appearance be made by sworn motion but it also provides that it may be amended to cure any defect. Tex.R.Civ.P. 120a(1).
As permitted by Rule 120a(1), Sharon corrected the defect in the original special appearance by verifying it. This portion of Curtis' complaint is without merit.
With respect to the second waiver argument, Sharon asserts that Curtis has misrepresented the facts because he is aware that the special appearance, not special exceptions, were set for a hearing on December 12, 2005. Sharon's attorney stated in a letter to Curtis that special exceptions were set for a hearing on December 12, 2005. However, the trial court's docket sheet reflects that Sharon's special appearance, not her special exceptions, was set for a hearing on December 12, 2005 and it was re-set for a later date. Other than the apparently erroneous letter written by Sharon's attorney, there is no evidence in the record supporting Curtis' assertion of waiver.
Furthermore, Curtis has raised the issue in a single sentence and he has not provided any citation to authority. Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). Failure to cite authority or provide substantive analysis waives an issue on appeal. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 410 (Tex. 1997); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.--El Paso 1997, no writ). Accordingly, we find that Curtis has waived the issue.
Jurisdiction Over Nonresident Defendants
Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas long-arm statute (5) authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). The long-arm statute permits Texas courts to exercise jurisdiction over nonresident defendants that do business in Texas, and the statute contains a non-exclusive list of activities that constitute "doing business." Tex.Civ. Prac. & Rem.Code Ann. §17.042 (Vernon 1997). Pertinent to this case, a nonresident does business in Texas if the nonresident commits a tort in whole or in part in the state. Tex.Civ.Prac. & Rem.Code Ann. §17.042(2). Curtis' pleadings assert that Sharon committed torts in Texas.
Section 17.042's broad language extends Texas courts' personal jurisdiction "as far as the federal constitutional requirements of due process will permit." BMC Software, 83 S.W.3d at 795, quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977). Consequently, we consider whether it is consistent with federal constitutional requirements of due process for Texas courts to assert in personam jurisdiction over Sharon. See Guardian Royal Exchange Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 226 (Tex. 1991). We rely on both federal and Texas decisions in determining whether a nonresident defendant has met its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.
The United States Supreme Court divides the due process requirements into two parts:
(1) whether the nonresident defendant has purposely established minimum contacts with the forum state, and if so, (2) whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at 795, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). We consider several factors in making the purposeful availment determination. Michiana Easy Livin' Country, Inc., 168 S.W.3d at 784-85. First, only the defendant's contacts with the forum are relevant, and we do not consider the unilateral activity of another party or a third person. Id. at 785. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated. Id. Third, the defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id.
Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific jurisdiction or general jurisdiction. BMC Software, 83 S.W.3d at 795-96, citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 226. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant's contacts with the forum must be purposeful, and (2) the cause of action must arise from or relate to those contacts. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Michiana Easy Livin' Country, Inc., 168 S.W.3d at 790. In contrast, general jurisdiction is present when a defendant's contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796.
Specific Jurisdiction
Curtis asserts that specific jurisdiction exists because Sharon deliberately committed acts which were purposefully directed to Texas and his claims arise from that conduct. He also argues that Sharon could reasonably anticipate having to defend herself in a Texas court as a result of her actions. The Supreme Court has expressly rejected the argument that jurisdiction exists solely because a defendant directed a tort at Texas. Michiana, 168 S.W.3d at 791-92. Instead, we must examine whether the defendant's contacts with the forum are purposeful and whether the cause of action arises from or relates to those contacts. See American Type, 83 S.W.3d at 806.
In contending that jurisdiction exists, Curtis argues that his father and the title company have done business in Texas. The contacts of Rick Marsh and the title company are irrelevant to the issue of specific jurisdiction. It is only the defendant's contacts with the forum that count: purposeful availment ensures that a defendant will not be haled into a jurisdiction solely as a result of the unilateral activity of another party or a third person. Michiana, 168 S.W.3d at 785. Thus, we will consider only Sharon's contacts with Texas.
Sharon is not a Texas resident and she does not own any property in here. Other than attending the wedding of Curtis and Jamie in 1990 and visiting with them during the Christmas holidays on two occasions since 1999 or 2000, Sharon has not been to Texas. She did not discuss the title company or its potential sale during any of these visits. In the past, Sharon made social telephone calls to Curtis and his wife approximately three or four times each year and she corresponded by mail once or twice a year. Other than the single phone call detailed in Curtis' pleadings and Jamie's affidavit, Sharon has not had any discussions in Texas about the prospect of Curtis purchasing the title company and none of her alleged liability arises from or is related to an activity conducted within the forum. Therefore, the only issue in deciding the specific jurisdiction issue is whether by making this single telephone call Sharon purposefully availed herself of the privileges and benefits of conducting activities within Texas, thus invoking the benefits and protections of its laws. See Michiana, 168 S.W.3d at 784.
Curtis has directed our attention to only one case in which a single phone call made by the nonresident defendant to the forum state was found sufficient to establish specific jurisdiction. See Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982). There, Jerry Kralis, who is an Indiana resident and the president of an Indiana corporation, telephoned the U.S. Attorney in Oxford, Mississippi and made allegedly defamatory statements about a Mississippi resident and a Mississippi corporation, which caused them to lose the chance to obtain a $4 million loan from the Farmers Home Administration. The plaintiffs filed suit in Mississippi against Kralis, Kralis Brothers Foods, and Flowers Industries, Inc., a Delaware corporation with its principal place of business in Georgia, alleging that the defendants conspired to and did cause them economic and other injuries. The district court held that the single contact was insufficient under the due process clause to subject the defendants to in personam jurisdiction but the Fifth Circuit disagreed. The Fifth Circuit drew a distinction between a negligent tort and an intentional one, and found that Kralis could easily have foreseen that the injurious effect of the alleged intentional tort would fall in Mississippi. Brown, 688 F.2d at 333-34. The Supreme Court distinguished Brown in Michiana on the ground that the defendant's conduct was much more extensive and was aimed at getting extensive business in or from the forum state. Id. at 789-90. Michiana expressly disapproved of the Brown analysis because this kind of foreseeability is not a sufficient benchmark for exercising jurisdiction. Michiana, 168 S.W.3d at 788-89. The court went on to note that it had expressly rejected jurisdiction based solely upon the effects or consequences of an alleged conspiracy in the forum state. Id. at 789. It is the defendant's conduct and connection with the forum that are critical. Id. Given the Supreme Court's express rejection of the analysis employed in Brown, we will not apply it here.
In support of his assertion that specific jurisdiction exists, Curtis also cites Schexnayder v. Daniels, 187 S.W.3d 238 (Tex.App.--Texarkana 2006, pet. dism'd w.o.j.), Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), Wright v. Sage Engineering, Inc., 137 S.W.3d 238 (Tex.App.--Houston [1st Dist.] 2004, pet. denied), Moki Mac River Expeditions v. Drugg, No. 05-03-00051-CV, 2004 WL 100389 (Tex.App.--Dallas Jan. 22, 2004), reversed by 221 S.W.3d 569 (Tex. 2007), and Boissiere v. Nova Capital, LLC, 106 S.W.3d 897 (Tex.App.--Dallas 2003, no pet.). None of these cases holds that specific jurisdiction arose from a single telephone call. Further, the Texas Supreme Court reversed the Dallas Court of Appeals' decision in Moki Mac after Appellant filed his brief, and it disapproved of Boissiere in Michiana.
Despite Curtis' allegation that Sharon committed various torts, in part through the telephone call to Jamie, this single contact does not evidence the "purposeful availment" necessary for finding specific jurisdiction. Because we do not find purposeful availment or minimum contacts, it is unnecessary to address the second prong of the due process inquiry, that is, whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. The trial court did not err by impliedly concluding that Sharon negated specific jurisdiction.
General Jurisdiction
General jurisdiction exists when a defendant's contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796. Under general jurisdiction standards, the cause of action need not arise from or relate to the activities conducted within the forum state by the nonresident defendant, but the minimum contacts analysis becomes more demanding; the contacts must be substantial. See BMC Software, 83 S.W.3d at 797.
Curtis contends that general jurisdiction exists in this case because, in addition to the evidence that she had traveled to Texas for family visits and been in contact with Curtis and his family, Sharon had in the previous three or four years sought legal advice from him regarding her contemplated purchase of a residence near Lake Barkley and Eddyville, Kentucky. Sharon sent Curtis a check in the amount of $1,000 or $1,500 for legal fees.
Sharon's social trips to Texas and her telephone calls to the Marsh family in Dallas are random and occasional rather than being continuous and systematic. The evidence in the record reflects that Sharon has visited the state only a few times in the fourteen year period before the commission of the alleged torts and she has called Curtis and his family only once or twice a year. She has also corresponded with the family on a once or twice yearly basis. These contacts do not constitute the type of continuous and systematic contacts necessary to subject a nonresident to the state's jurisdiction. The fact that Sharon telephoned Curtis in the previous three or four years to obtain legal advice related to the purchase of real property in Kentucky does not change the analysis. The record does not reflect that the contact was continuous or systematic.
Further, contracting with a Texas resident is not by itself sufficient to subject a nonresident defendant to jurisdiction in Texas. See Experimental Aircraft Association, Inc. v. Doctor, 76 S.W.3d 496, 507-08 (Tex.App.--Houston [14th Dist.] 2002, no pet.); Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691 (Tex.App.--San Antonio 1998, no pet.). Given that we do not find purposeful availment, we need not address the second prong of the due process inquiry. After reviewing the record, we conclude that Sharon negated all bases of jurisdiction.
We overrule the sole issue and affirm the trial court's order granting the special appearance and dismissing Curtis' suit.
August 16, 2007
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
1. The facts pertaining to the events which led to Curtis filing suit against Sharon are taken from Curtis' pleadings and the affidavits of Curtis and his wife, Jamie Marsh.
2. Although the Rule 11 agreement recited the date as September 21, 2005, the pleadings and Jamie's affidavit state the conversation took place on September 21, 2004.
3. In her affidavit, Sharon disputed Jamie's description of the conversation.
4. BMC Software impliedly overruled our decision in Tuscano v. Osterberg, 82 S.W.3d 457 (Tex.App.--El Paso 2002, no pet.). In Tuscano, we overruled In re Estate of Judd, 8 S.W.3d 436 (Tex.App.--El Paso 1999, no pet.) and held that the standard of review of a trial court's ruling on a special appearance is legal sufficiency. The Supreme Court cited In re Estate of Judd with approval in BMC Software, 83 S.W.3d at 794.
5. Tex.Civ. Prac.&Rem.Code Ann. §§ 17.041-.045 (Vernon 1997 and Vernon Supp. 2006).
Appeal from 160th District Court of Dallas County
OPINION BY JUSTICE ANN CRAWFORD McCLURE
Curtis L. Marsh appeals from an order granting Sharon Marsh's special appearance and dismissing the cause of action with prejudice to re-filing in Texas. Finding no error, we affirm.
FACTUAL SUMMARY
Curtis Marsh, a Texas attorney, sued his stepmother, Sharon Marsh, for tortious interference with business and contractual relationships, tortious interference with prospective business relationships, slander and defamation, invasion of privacy, and intentional infliction of emotional distress. All of the claims arise from Curtis' efforts to purchase an Illinois title company owned by his father and Sharon's alleged interference with the purchase.
Curtis was raised in Tuscola, Illinois but he has practiced law in Dallas, Texas since 1985. (1) His father, Rick Marsh, owns a Tuscola title business, Douglas County Abstract Company, Inc. The title company has been in the Marsh family since the early 1900's. Sharon has worked for the company since the 1970's. The record does not reflect when Sharon married Rick Marsh.
Sometime in 2003, Rick telephoned Curtis and expressed a desire to retire in about a year. Rick wanted the title company to stay in the family and he offered to sell the business to Curtis for $500,000. Curtis accepted, and he had several other conversations with his father about the purchase and Curtis' planned relocation to Tuscola. Curtis intended to establish a law practice in Tuscola and he was considering "taking over" the bench for a district judge who was retiring. During the summer of 2004, Curtis and his family began making preparations to relocate and they planned to look for a house during a Thanksgiving trip to Tuscola.
On September 21, 2004, Sharon telephoned Curtis' wife because Sharon had just learned that Curtis had agreed to take over the title company and that they were planning on looking at houses at Thanksgiving. Sharon was livid and she asked Jamie not to tell Curtis or Rick about their conversation. Sharon attempted to discourage Jamie from moving to Tuscola. She also inquired about the purchase price of the title company and their financial situation, including how much Curtis earned in his law practice in Dallas. Sharon told Jamie that Rick had made the decision to sell the business without her knowledge or consent and she would not sacrifice her standard of living by allowing the business to be sold to Curtis. Finally, Sharon told Jamie that Curtis could not make a living in Tuscola and they were not welcome there. Based on this conversation, Jamie told Curtis that she would not move to Illinois.
Rick called Curtis later the same day and told him that Sharon had learned of his plans to sell the business and because she objected, he could not sell it to Curtis for $500,000. Rick informed Curtis that Sharon owned one-half of the business and he would want significantly more money if and when he decided to sell it. According to Curtis, his father has not spoken to him since that day. Sharon filed a special appearance supported by her affidavit. Curtis responded with his own affidavit and Jamie's affidavit. The parties entered into a Rule 11 agreement that, for purposes of the special appearance only, the defendant would assume that the substance of the conversation between Jamie Marsh and Sharon Marsh which took place on September 21, 2005 (2) was true as alleged in plaintiff's first amended petition and in Jamie's affidavit. (3) The docket sheet reflects that on March 9, 2006, the trial court conducted a hearing on the special appearance during which Curtis appeared in person and Sharon's attorney appeared by telephone.
The appellate record does not include a transcription of the hearing. Presumably, the hearing was non-evidentiary and the trial court considered only the evidence filed with the clerk. See Michiana Easy Livin' Country v. Holten, 168 S.W.3d 777, 782-83 (Tex. 2005). Our presumption is supported by the trial court's order on the special appearance which indicates that the court considered Sharon's special appearance, brief and affidavit offered in support of her special appearance, the affidavits of Jamie and Curtis Marsh, Curtis' response to the special appearance, the pleadings, and the arguments and authorities of counsel. The court granted the special appearance and dismissed the suit on April 11, 2006. Curtis filed a timely notice of appeal.
SPECIAL APPEARANCE
In his sole issue for review, Curtis challenges the order granting the special appearance and dismissing his suit.
Standard of Review
The plaintiff bears the initial burden of pleading sufficient allegations to bring a non-resident
defendant within the personal jurisdiction of a Texas court. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). The nonresident defendant then assumes the burden of negating all bases of jurisdiction in those allegations. Id.
Whether a trial court has personal jurisdiction over a defendant is a question of law, which we review de novo. Id. at 794. (4) However, the trial court frequently must resolve questions of fact before deciding the question of jurisdiction. Id. If a trial court enters an order denying a special appearance, and the trial court issues findings of fact and conclusions of law, the appellant may challenge the fact findings on legal and factual sufficiency grounds. Id. When, as here, the trial court does not issue findings of facts and conclusions of law with its special appearance ruling, all fact findings necessary to support the judgment and supported by the evidence are implied. Id. at 795.
Waiver of Special Appearance
We first consider Curtis' argument that Sharon waived her special appearance by (1) failing to verify her special appearance as required by Rule 120a, and (2) by setting her special exceptions for hearing on December 12, 2005 prior to a hearing on the special appearance.
Sharon filed an unsworn special appearance on October 14, 2005. On October 31, 2005, she filed her affidavit which, among other things, verified the special appearance previously filed by her attorney. Rule 120a(1) of the Rules of Civil Procedure requires that a special appearance be made by sworn motion but it also provides that it may be amended to cure any defect. Tex.R.Civ.P. 120a(1).
As permitted by Rule 120a(1), Sharon corrected the defect in the original special appearance by verifying it. This portion of Curtis' complaint is without merit.
With respect to the second waiver argument, Sharon asserts that Curtis has misrepresented the facts because he is aware that the special appearance, not special exceptions, were set for a hearing on December 12, 2005. Sharon's attorney stated in a letter to Curtis that special exceptions were set for a hearing on December 12, 2005. However, the trial court's docket sheet reflects that Sharon's special appearance, not her special exceptions, was set for a hearing on December 12, 2005 and it was re-set for a later date. Other than the apparently erroneous letter written by Sharon's attorney, there is no evidence in the record supporting Curtis' assertion of waiver.
Furthermore, Curtis has raised the issue in a single sentence and he has not provided any citation to authority. Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). Failure to cite authority or provide substantive analysis waives an issue on appeal. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 410 (Tex. 1997); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.--El Paso 1997, no writ). Accordingly, we find that Curtis has waived the issue.
Jurisdiction Over Nonresident Defendants
Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas long-arm statute (5) authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007); Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). The long-arm statute permits Texas courts to exercise jurisdiction over nonresident defendants that do business in Texas, and the statute contains a non-exclusive list of activities that constitute "doing business." Tex.Civ. Prac. & Rem.Code Ann. §17.042 (Vernon 1997). Pertinent to this case, a nonresident does business in Texas if the nonresident commits a tort in whole or in part in the state. Tex.Civ.Prac. & Rem.Code Ann. §17.042(2). Curtis' pleadings assert that Sharon committed torts in Texas.
Section 17.042's broad language extends Texas courts' personal jurisdiction "as far as the federal constitutional requirements of due process will permit." BMC Software, 83 S.W.3d at 795, quoting U-Anchor Adver., Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977). Consequently, we consider whether it is consistent with federal constitutional requirements of due process for Texas courts to assert in personam jurisdiction over Sharon. See Guardian Royal Exchange Assurance, Ltd. v. English China Clays, 815 S.W.2d 223, 226 (Tex. 1991). We rely on both federal and Texas decisions in determining whether a nonresident defendant has met its burden to negate all bases of jurisdiction. BMC Software, 83 S.W.3d at 795.
The United States Supreme Court divides the due process requirements into two parts:
(1) whether the nonresident defendant has purposely established minimum contacts with the forum state, and if so, (2) whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. BMC Software, 83 S.W.3d at 795, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). We consider several factors in making the purposeful availment determination. Michiana Easy Livin' Country, Inc., 168 S.W.3d at 784-85. First, only the defendant's contacts with the forum are relevant, and we do not consider the unilateral activity of another party or a third person. Id. at 785. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated. Id. Third, the defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id.
Personal jurisdiction exists if the nonresident defendant's minimum contacts give rise to either specific jurisdiction or general jurisdiction. BMC Software, 83 S.W.3d at 795-96, citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Guardian Royal, 815 S.W.2d at 226. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant's contacts with the forum must be purposeful, and (2) the cause of action must arise from or relate to those contacts. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). The minimum contacts analysis for specific jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Michiana Easy Livin' Country, Inc., 168 S.W.3d at 790. In contrast, general jurisdiction is present when a defendant's contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796.
Specific Jurisdiction
Curtis asserts that specific jurisdiction exists because Sharon deliberately committed acts which were purposefully directed to Texas and his claims arise from that conduct. He also argues that Sharon could reasonably anticipate having to defend herself in a Texas court as a result of her actions. The Supreme Court has expressly rejected the argument that jurisdiction exists solely because a defendant directed a tort at Texas. Michiana, 168 S.W.3d at 791-92. Instead, we must examine whether the defendant's contacts with the forum are purposeful and whether the cause of action arises from or relates to those contacts. See American Type, 83 S.W.3d at 806.
In contending that jurisdiction exists, Curtis argues that his father and the title company have done business in Texas. The contacts of Rick Marsh and the title company are irrelevant to the issue of specific jurisdiction. It is only the defendant's contacts with the forum that count: purposeful availment ensures that a defendant will not be haled into a jurisdiction solely as a result of the unilateral activity of another party or a third person. Michiana, 168 S.W.3d at 785. Thus, we will consider only Sharon's contacts with Texas.
Sharon is not a Texas resident and she does not own any property in here. Other than attending the wedding of Curtis and Jamie in 1990 and visiting with them during the Christmas holidays on two occasions since 1999 or 2000, Sharon has not been to Texas. She did not discuss the title company or its potential sale during any of these visits. In the past, Sharon made social telephone calls to Curtis and his wife approximately three or four times each year and she corresponded by mail once or twice a year. Other than the single phone call detailed in Curtis' pleadings and Jamie's affidavit, Sharon has not had any discussions in Texas about the prospect of Curtis purchasing the title company and none of her alleged liability arises from or is related to an activity conducted within the forum. Therefore, the only issue in deciding the specific jurisdiction issue is whether by making this single telephone call Sharon purposefully availed herself of the privileges and benefits of conducting activities within Texas, thus invoking the benefits and protections of its laws. See Michiana, 168 S.W.3d at 784.
Curtis has directed our attention to only one case in which a single phone call made by the nonresident defendant to the forum state was found sufficient to establish specific jurisdiction. See Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982). There, Jerry Kralis, who is an Indiana resident and the president of an Indiana corporation, telephoned the U.S. Attorney in Oxford, Mississippi and made allegedly defamatory statements about a Mississippi resident and a Mississippi corporation, which caused them to lose the chance to obtain a $4 million loan from the Farmers Home Administration. The plaintiffs filed suit in Mississippi against Kralis, Kralis Brothers Foods, and Flowers Industries, Inc., a Delaware corporation with its principal place of business in Georgia, alleging that the defendants conspired to and did cause them economic and other injuries. The district court held that the single contact was insufficient under the due process clause to subject the defendants to in personam jurisdiction but the Fifth Circuit disagreed. The Fifth Circuit drew a distinction between a negligent tort and an intentional one, and found that Kralis could easily have foreseen that the injurious effect of the alleged intentional tort would fall in Mississippi. Brown, 688 F.2d at 333-34. The Supreme Court distinguished Brown in Michiana on the ground that the defendant's conduct was much more extensive and was aimed at getting extensive business in or from the forum state. Id. at 789-90. Michiana expressly disapproved of the Brown analysis because this kind of foreseeability is not a sufficient benchmark for exercising jurisdiction. Michiana, 168 S.W.3d at 788-89. The court went on to note that it had expressly rejected jurisdiction based solely upon the effects or consequences of an alleged conspiracy in the forum state. Id. at 789. It is the defendant's conduct and connection with the forum that are critical. Id. Given the Supreme Court's express rejection of the analysis employed in Brown, we will not apply it here.
In support of his assertion that specific jurisdiction exists, Curtis also cites Schexnayder v. Daniels, 187 S.W.3d 238 (Tex.App.--Texarkana 2006, pet. dism'd w.o.j.), Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), Wright v. Sage Engineering, Inc., 137 S.W.3d 238 (Tex.App.--Houston [1st Dist.] 2004, pet. denied), Moki Mac River Expeditions v. Drugg, No. 05-03-00051-CV, 2004 WL 100389 (Tex.App.--Dallas Jan. 22, 2004), reversed by 221 S.W.3d 569 (Tex. 2007), and Boissiere v. Nova Capital, LLC, 106 S.W.3d 897 (Tex.App.--Dallas 2003, no pet.). None of these cases holds that specific jurisdiction arose from a single telephone call. Further, the Texas Supreme Court reversed the Dallas Court of Appeals' decision in Moki Mac after Appellant filed his brief, and it disapproved of Boissiere in Michiana.
Despite Curtis' allegation that Sharon committed various torts, in part through the telephone call to Jamie, this single contact does not evidence the "purposeful availment" necessary for finding specific jurisdiction. Because we do not find purposeful availment or minimum contacts, it is unnecessary to address the second prong of the due process inquiry, that is, whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. The trial court did not err by impliedly concluding that Sharon negated specific jurisdiction.
General Jurisdiction
General jurisdiction exists when a defendant's contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. BMC Software, 83 S.W.3d at 796. Under general jurisdiction standards, the cause of action need not arise from or relate to the activities conducted within the forum state by the nonresident defendant, but the minimum contacts analysis becomes more demanding; the contacts must be substantial. See BMC Software, 83 S.W.3d at 797.
Curtis contends that general jurisdiction exists in this case because, in addition to the evidence that she had traveled to Texas for family visits and been in contact with Curtis and his family, Sharon had in the previous three or four years sought legal advice from him regarding her contemplated purchase of a residence near Lake Barkley and Eddyville, Kentucky. Sharon sent Curtis a check in the amount of $1,000 or $1,500 for legal fees.
Sharon's social trips to Texas and her telephone calls to the Marsh family in Dallas are random and occasional rather than being continuous and systematic. The evidence in the record reflects that Sharon has visited the state only a few times in the fourteen year period before the commission of the alleged torts and she has called Curtis and his family only once or twice a year. She has also corresponded with the family on a once or twice yearly basis. These contacts do not constitute the type of continuous and systematic contacts necessary to subject a nonresident to the state's jurisdiction. The fact that Sharon telephoned Curtis in the previous three or four years to obtain legal advice related to the purchase of real property in Kentucky does not change the analysis. The record does not reflect that the contact was continuous or systematic.
Further, contracting with a Texas resident is not by itself sufficient to subject a nonresident defendant to jurisdiction in Texas. See Experimental Aircraft Association, Inc. v. Doctor, 76 S.W.3d 496, 507-08 (Tex.App.--Houston [14th Dist.] 2002, no pet.); Magnolia Gas Co. v. Knight Equip. & Mfg. Corp., 994 S.W.2d 684, 691 (Tex.App.--San Antonio 1998, no pet.). Given that we do not find purposeful availment, we need not address the second prong of the due process inquiry. After reviewing the record, we conclude that Sharon negated all bases of jurisdiction.
We overrule the sole issue and affirm the trial court's order granting the special appearance and dismissing Curtis' suit.
August 16, 2007
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
1. The facts pertaining to the events which led to Curtis filing suit against Sharon are taken from Curtis' pleadings and the affidavits of Curtis and his wife, Jamie Marsh.
2. Although the Rule 11 agreement recited the date as September 21, 2005, the pleadings and Jamie's affidavit state the conversation took place on September 21, 2004.
3. In her affidavit, Sharon disputed Jamie's description of the conversation.
4. BMC Software impliedly overruled our decision in Tuscano v. Osterberg, 82 S.W.3d 457 (Tex.App.--El Paso 2002, no pet.). In Tuscano, we overruled In re Estate of Judd, 8 S.W.3d 436 (Tex.App.--El Paso 1999, no pet.) and held that the standard of review of a trial court's ruling on a special appearance is legal sufficiency. The Supreme Court cited In re Estate of Judd with approval in BMC Software, 83 S.W.3d at 794.
5. Tex.Civ. Prac.&Rem.Code Ann. §§ 17.041-.045 (Vernon 1997 and Vernon Supp. 2006).
Wednesday, August 15, 2007
Writ of Mandamus in challenge to continuing jurisdiction denied
San Antonio Court of Appeals rules that trial court did not err in retaining jurisdiction over proceeding involving motion to modify parent-child relationship.
In re John Gaskey, No. 04-07-00433-CV (Tex.App.- San Antonio, Aug. 14, 2007)(per curiam)(family court's continuing jurisdiction)(Before Chief Justice Lopez, Justices Angelini and Simmons)
Appeal from 73rd District Court of Bexar County
Original Mandamus Proceeding (1)
PER CURIAM
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 15, 2007
PETITION FOR WRIT OF MANDAMUS DENIED
John Gaskey has filed a petition for a writ of mandamus challenging the trial court's denial of his motion to dismiss the underlying child custody modification proceedings for lack of jurisdiction. This court has considered Gaskey's mandamus petition and the record and is of the opinion that relief should be denied. Based on the arguments and the evidence presented, the trial court could have properly concluded that it retained jurisdiction. See Tex. Fam. Code Ann. § 152.202(a) (Vernon 2002); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (orig. proceeding). The trial court did not abuse its discretion in denying Gaskey's motion to dismiss. Accordingly, Gaskey's petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
PER CURIAM
1. This proceeding arises out of Cause No. 2001-CI-17440, styled In the Interest of D.W.G., pending in the 73rd Judicial District Court, Bexar County, Texas, the Honorable Andy Mireles presiding. However, the challenged order was signed by the Honorable Michael Peden, presiding judge of the 285th Judicial District Court, Bexar County, Texas.
In re John Gaskey, No. 04-07-00433-CV (Tex.App.- San Antonio, Aug. 14, 2007)(per curiam)(family court's continuing jurisdiction)(Before Chief Justice Lopez, Justices Angelini and Simmons)
Appeal from 73rd District Court of Bexar County
Original Mandamus Proceeding (1)
PER CURIAM
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 15, 2007
PETITION FOR WRIT OF MANDAMUS DENIED
John Gaskey has filed a petition for a writ of mandamus challenging the trial court's denial of his motion to dismiss the underlying child custody modification proceedings for lack of jurisdiction. This court has considered Gaskey's mandamus petition and the record and is of the opinion that relief should be denied. Based on the arguments and the evidence presented, the trial court could have properly concluded that it retained jurisdiction. See Tex. Fam. Code Ann. § 152.202(a) (Vernon 2002); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004) (orig. proceeding). The trial court did not abuse its discretion in denying Gaskey's motion to dismiss. Accordingly, Gaskey's petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
PER CURIAM
1. This proceeding arises out of Cause No. 2001-CI-17440, styled In the Interest of D.W.G., pending in the 73rd Judicial District Court, Bexar County, Texas, the Honorable Andy Mireles presiding. However, the challenged order was signed by the Honorable Michael Peden, presiding judge of the 285th Judicial District Court, Bexar County, Texas.
Tuesday, August 14, 2007
Decision to deed separate property to wife to obtain second homestead exemption comes back to haunt husband in divorce
Dallas Court of Appeals reverses trial court's invalidation of deed; renders judgment that the property was validly conveyed by the husband and is the sole and separate property of the wife. Also holds that consideration of parol evidence regarding oral argeement to convey the property back to the husband was error.
Mikie Lee Wells v. Eugene G. Wells, No, 05-06-00773-CV (Tex.App.- Dallas, Jul. 30, 2007)
MEMORANDUM OPINION
Before Justices Morris, Francis, and MazzantOpinion By Justice Francis
Mikie Lee Wells appeals a property division incident to divorce. In six issues, appellant generally argues the trial court erred in invalidating a deed conveying property to her and awarding that same property to her ex-husband, Eugene G. Wells. For reasons set out below, we agree. Accordingly, we reverse that portion of the trial court's divorce decree awarding the property to appellee and render judgment for appellant.
For the most part, the facts of this case are undisputed. Appellant and appellee married in 1993 after the deaths of their spouses. Before marrying, they signed a prenuptial agreement that all property owned by each and any income derived from that property or later acquired would remain that party's separate property. In 2000, the couple purchased property in Grayson County and built a house on it. Each used separate property to pay for the land and house.
The couple moved into the house in January 2001. After receiving their first tax statement, they went to the Grayson County Appraisal District to apply for a homestead exemption to reduce their tax burden. Appellee testified the application was denied because he already owned homesteaded property in Tarrant County. At that point, appellee came up with a solution: he would convey his interest in the Grayson County property to appellant.
Appellant and appellee went to see an attorney, who drafted a deed that conveyed appellee's interest in the property to appellant for $10 and other good and valuable consideration. Appellee signed the deed and left it with the lawyer to record. The lawyer filed the deed of record in Grayson County, and the deed, according to its terms, was then mailed to appellant. The property received homestead exemptions in 2002, 2003, 2004, and 2005. In June 2004, appellee filed for divorce and sought to invalidate the deed.
Conflicting evidence was presented as to whether the parties had a prior oral agreement that if they were unable to secure a homestead exemption on the property, appellant would reconvey the property to appellee. Appellee testified there was such an agreement, while appellant testified there was not.
After hearing the evidence, the trial court signed a final divorce decree invalidating the deed, awarded each party an undivided interest in the property as his/her sole and separate property, and ordered the property to be sold. The trial court also made findings of fact and conclusions of law. Notably, the trial court concluded the deed was “not valid and enforceable as the sole purpose of said conveyance was for obtaining a homestead exemption on the Property in dispute and was not intended to act as a true conveyance of [appellee's] interest in the Property as per the failure of the delivery of the Cash Warranty Deed.” The trial court also found, among other things, that appellee did not intend to actually convey, and appellant did not intend to actually accept, appellee's interest in the property. This appeal ensued.
In six issues, appellant complains the trial court considered inadmissible parol evidence in reaching the legal conclusion of no delivery and contends the evidence is legally and factually insufficient to support its findings of no actual intent to deliver or accept the deed.
We review conclusions of law to determine whether the trial court correctly drew the legal conclusions from the facts. Dallas Morning News Co. v. Bd. of Trustees of Dallas Indep. Sch. Dist., 861 S.W.2d 532, 536 (Tex. App.-Dallas 1993, writ denied). We review the legal and factual sufficiency of an adverse finding on which the complaining party did not have the burden of proof under well-established standards. See Pulley v. Milberger, 198 S.W.3d 418, 426-27 (Tex. App.-Dallas 2006, pet. denied).
To render a deed effective, it must be (1) delivered into the control of the grantee and (2) the grantor must intend the deed to become operative as a conveyance. See Binford v. Snyder, 144 Tex. 134, 143-44, 189 S.W.2d 471, 475 (Tex. 1945); Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 869 (Tex. App.-Dallas 2005, no pet.). Whether there has been in fact a delivery is for the trier of the facts, while the question of what constitutes a delivery is one of law. Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357, 359 (Tex. 1949); Adams, 154 S.W.3d at 870. The question of whether a deed has been delivered is primarily one of the grantor's intent. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 662 (1917); Adams, 154 S.W.3d at 869. To consummate a delivery, the deed must be placed in the hands of the grantee, or within his control. Jones v. Young, 539 S.W.2d 901, 904 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.); Chasteen v. Miller, 349 S.W.2d 772, 775 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.). Just as the recording of a deed creates a presumption that the deed was delivered, it also creates a presumption that the grantee accepted the deed. Tex. Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 859, 863 (1942); Panhandle Baptist Found., Inc. v. Clodfelter, 54 S.W.3d 66, 71-72 (Tex. App.-Amarillo 2001, no pet.) . The presumption of both delivery and acceptance may be rebutted by contrary evidence. Panhandle Baptist Found., 54 S.W.3d at 72.
The undisputed evidence in this case shows that, in an effort to secure a homestead exemption and, in turn, a reduced tax burden, appellee had a deed drawn conveying his interest in the property to appellant. Appellee signed the deed, had the lawyer record the deed, and had the deed delivered to appellant. The deed contained no conditional or restrictive language. These facts create a presumption that appellee delivered, and appellant accepted, the deed.
To rebut the presumption, appellee relies on evidence of an alleged oral agreement that appellant would reconvey the property if the homestead was not obtained. We agree with appellant that this testimony was inadmissible parol evidence. See Footnote 1 Regardless, even if admissible, it does not negate present intent to convey. To the contrary, the evidence showed that the purpose of the deed was to obtain a homestead exemption; however, that purpose could not be accomplished in the first instance unless title effectively passed from appellee to appellant. See Stout v. Clayton, 674 S.W.2d 821, 826 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.) (concluding that evidence of purpose of transfer was to ensure grantor's eligibility for governmental assistance was not evidence of nondelivery because purpose could only be achieved if grantor divested herself of title to property). The evidence relied upon by appellee simply demonstrates his desire to have the property reconveyed to him if appellant was unable to secure a homestead exemption. As stated previously, no such language was incorporated into the deed nor did the parties execute a separate written agreement regarding any reconveyance. Moreover, the undisputed evidence showed that a homestead exemption was obtained on the property in each eligible year.
We conclude there is no evidence to support the trial court's findings of no intent to convey or accept appellee's interest in the property. Likewise, we conclude the trial court's conclusion that the deed was not valid for failure of delivery is erroneous. We therefore sustain appellant's points of error.
We reverse that portion of the trial court's final divorce decree awarding an undivided one- half interest in the property to appellee and render judgment that the property is the sole and separate property of appellant.
MOLLY FRANCIS
JUSTICE
Footnote 1 Appellee argues appellant has waived admission of this evidence by withdrawing her objection at trial. To the contrary, parol evidence is not a rule of evidence, but a rule of substantive law that bars the court from considering evidence violative of the rule, even though it is admitted without objection. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958); King v. Fordice, 776 S.W.2d 608, 612 (Tex. App.-Dallas 1989, writ denied). Evidence admitted in violation of the rule is incompetent and without probative force and cannot be properly given legal effect. Johnson v.Driver, 198 S.W.3d 359, 364 (Tex. App.-Tyler 2006, no pet.).
Mikie Lee Wells v. Eugene G. Wells, No, 05-06-00773-CV (Tex.App.- Dallas, Jul. 30, 2007)
MEMORANDUM OPINION
Before Justices Morris, Francis, and MazzantOpinion By Justice Francis
Mikie Lee Wells appeals a property division incident to divorce. In six issues, appellant generally argues the trial court erred in invalidating a deed conveying property to her and awarding that same property to her ex-husband, Eugene G. Wells. For reasons set out below, we agree. Accordingly, we reverse that portion of the trial court's divorce decree awarding the property to appellee and render judgment for appellant.
For the most part, the facts of this case are undisputed. Appellant and appellee married in 1993 after the deaths of their spouses. Before marrying, they signed a prenuptial agreement that all property owned by each and any income derived from that property or later acquired would remain that party's separate property. In 2000, the couple purchased property in Grayson County and built a house on it. Each used separate property to pay for the land and house.
The couple moved into the house in January 2001. After receiving their first tax statement, they went to the Grayson County Appraisal District to apply for a homestead exemption to reduce their tax burden. Appellee testified the application was denied because he already owned homesteaded property in Tarrant County. At that point, appellee came up with a solution: he would convey his interest in the Grayson County property to appellant.
Appellant and appellee went to see an attorney, who drafted a deed that conveyed appellee's interest in the property to appellant for $10 and other good and valuable consideration. Appellee signed the deed and left it with the lawyer to record. The lawyer filed the deed of record in Grayson County, and the deed, according to its terms, was then mailed to appellant. The property received homestead exemptions in 2002, 2003, 2004, and 2005. In June 2004, appellee filed for divorce and sought to invalidate the deed.
Conflicting evidence was presented as to whether the parties had a prior oral agreement that if they were unable to secure a homestead exemption on the property, appellant would reconvey the property to appellee. Appellee testified there was such an agreement, while appellant testified there was not.
After hearing the evidence, the trial court signed a final divorce decree invalidating the deed, awarded each party an undivided interest in the property as his/her sole and separate property, and ordered the property to be sold. The trial court also made findings of fact and conclusions of law. Notably, the trial court concluded the deed was “not valid and enforceable as the sole purpose of said conveyance was for obtaining a homestead exemption on the Property in dispute and was not intended to act as a true conveyance of [appellee's] interest in the Property as per the failure of the delivery of the Cash Warranty Deed.” The trial court also found, among other things, that appellee did not intend to actually convey, and appellant did not intend to actually accept, appellee's interest in the property. This appeal ensued.
In six issues, appellant complains the trial court considered inadmissible parol evidence in reaching the legal conclusion of no delivery and contends the evidence is legally and factually insufficient to support its findings of no actual intent to deliver or accept the deed.
We review conclusions of law to determine whether the trial court correctly drew the legal conclusions from the facts. Dallas Morning News Co. v. Bd. of Trustees of Dallas Indep. Sch. Dist., 861 S.W.2d 532, 536 (Tex. App.-Dallas 1993, writ denied). We review the legal and factual sufficiency of an adverse finding on which the complaining party did not have the burden of proof under well-established standards. See Pulley v. Milberger, 198 S.W.3d 418, 426-27 (Tex. App.-Dallas 2006, pet. denied).
To render a deed effective, it must be (1) delivered into the control of the grantee and (2) the grantor must intend the deed to become operative as a conveyance. See Binford v. Snyder, 144 Tex. 134, 143-44, 189 S.W.2d 471, 475 (Tex. 1945); Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 869 (Tex. App.-Dallas 2005, no pet.). Whether there has been in fact a delivery is for the trier of the facts, while the question of what constitutes a delivery is one of law. Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357, 359 (Tex. 1949); Adams, 154 S.W.3d at 870. The question of whether a deed has been delivered is primarily one of the grantor's intent. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 662 (1917); Adams, 154 S.W.3d at 869. To consummate a delivery, the deed must be placed in the hands of the grantee, or within his control. Jones v. Young, 539 S.W.2d 901, 904 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.); Chasteen v. Miller, 349 S.W.2d 772, 775 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.). Just as the recording of a deed creates a presumption that the deed was delivered, it also creates a presumption that the grantee accepted the deed. Tex. Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 859, 863 (1942); Panhandle Baptist Found., Inc. v. Clodfelter, 54 S.W.3d 66, 71-72 (Tex. App.-Amarillo 2001, no pet.) . The presumption of both delivery and acceptance may be rebutted by contrary evidence. Panhandle Baptist Found., 54 S.W.3d at 72.
The undisputed evidence in this case shows that, in an effort to secure a homestead exemption and, in turn, a reduced tax burden, appellee had a deed drawn conveying his interest in the property to appellant. Appellee signed the deed, had the lawyer record the deed, and had the deed delivered to appellant. The deed contained no conditional or restrictive language. These facts create a presumption that appellee delivered, and appellant accepted, the deed.
To rebut the presumption, appellee relies on evidence of an alleged oral agreement that appellant would reconvey the property if the homestead was not obtained. We agree with appellant that this testimony was inadmissible parol evidence. See Footnote 1 Regardless, even if admissible, it does not negate present intent to convey. To the contrary, the evidence showed that the purpose of the deed was to obtain a homestead exemption; however, that purpose could not be accomplished in the first instance unless title effectively passed from appellee to appellant. See Stout v. Clayton, 674 S.W.2d 821, 826 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.) (concluding that evidence of purpose of transfer was to ensure grantor's eligibility for governmental assistance was not evidence of nondelivery because purpose could only be achieved if grantor divested herself of title to property). The evidence relied upon by appellee simply demonstrates his desire to have the property reconveyed to him if appellant was unable to secure a homestead exemption. As stated previously, no such language was incorporated into the deed nor did the parties execute a separate written agreement regarding any reconveyance. Moreover, the undisputed evidence showed that a homestead exemption was obtained on the property in each eligible year.
We conclude there is no evidence to support the trial court's findings of no intent to convey or accept appellee's interest in the property. Likewise, we conclude the trial court's conclusion that the deed was not valid for failure of delivery is erroneous. We therefore sustain appellant's points of error.
We reverse that portion of the trial court's final divorce decree awarding an undivided one- half interest in the property to appellee and render judgment that the property is the sole and separate property of appellant.
MOLLY FRANCIS
JUSTICE
Footnote 1 Appellee argues appellant has waived admission of this evidence by withdrawing her objection at trial. To the contrary, parol evidence is not a rule of evidence, but a rule of substantive law that bars the court from considering evidence violative of the rule, even though it is admitted without objection. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958); King v. Fordice, 776 S.W.2d 608, 612 (Tex. App.-Dallas 1989, writ denied). Evidence admitted in violation of the rule is incompetent and without probative force and cannot be properly given legal effect. Johnson v.Driver, 198 S.W.3d 359, 364 (Tex. App.-Tyler 2006, no pet.).
Tuesday, August 7, 2007
Jury Award of Primary Custody to Father Affirmed; Morality Issues Considered
Melissa Jean Garcia v. Gilbert Anthony Garcia, No. 04-06-00440-CV (Tex.App.- San Antonio, July 25, 2007)(Opinion by Justice Angelini)(Before Justices Stone, Angelini and Hilbig)(jury decision to award right to determine child's residence to father affirmed)
Appeal from 57th District Court of Bexar County
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 25, 2007
AFFIRMED
This is an appeal from a divorce and conservatorship proceeding between Gilbert Anthony Garcia ("Gilbert") and Melissa Jean Garcia ("Melissa").
Factual and Procedural Background
Melissa and Gilbert met online in June of 1999. Although Melissa resided in Michigan, and Gilbert resided in Texas, they married in Michigan in June of 2000, and proceeded to live there for several years. In March of 2001, the couple had a daughter, (" I. L.G."), and in November 2002, the family moved to Texas, where they lived with Gilbert's parents. Melissa, who is a registered nurse, worked full-time, while Gilbert mainly stayed home to care for their daughter.
The couple began experiencing marital problems and in January of 2004, Melissa moved out of her in-laws' home, taking I.L.G. with her. Gilbert filed for divorce in August of 2004, and Melissa subsequently filed her own divorce petition. The trial court subsequently granted the parties' cross-petitions for divorce, and a jury designated Melissa and Gilbert joint managing conservators of their five-year old daughter, giving Gilbert the exclusive right to determine I.L.G.'s primary residence.
Melissa appeals the jury's finding that Gilbert have the exclusive right to determine the principal residence of I.L.G., arguing that: 1) this finding is based on no evidence, factually insufficient evidence, or alternatively, against the great weight and preponderance of the evidence; 2) "the jury committ[ed] harmful error in disregarding the record, the expert testimony from Eloise Gonzales and Mary Bullock, and the substantial, conclusive evidence on uncontested facts in finding that [Gilbert] . . . have the exclusive right to determine the principal residence of the Child"; and 3) this finding is not in the child's best interest. We affirm.
Standard of Review
In reviewing a legal sufficiency challenge, we determine whether the evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002). We will sustain a no-evidence point if a finding is not supported by "anything more than a scintilla of evidence." In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002) (citing Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).
In making this determination, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827; In re J.F.C., 96 S.W.3d at 266. Evidence is legally insufficient when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law 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. City of Keller, 168 S.W.3d at 810.
In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In making this review, we do not substitute our judgment for that of the jury, even if a different answer could be reached on the evidence. See City of Keller, 168 S.W.3d at 821. It is well established that jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. Id. at 819; see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Therefore, a jury confronted with conflicting evidence may choose to believe one witness and disbelieve others; it may resolve inconsistencies in the testimony of any witness; or it may accept lay testimony over that of experts. City of Keller, 168 S.W.3d at 819-20.
Discussion
In the present case, the jury found that both parents should share custody of the child and named them joint managing conservators; however, the jury also determined that Gilbert would have the exclusive right to determine the primary residence of the child. See Tex. Fam. Code Ann. §101.016 (Vernon 2002). The record reflects that the jury was confronted with conflicting evidence in this regard. On the one hand, there was evidence of the following: that Gilbert was a loving, devoted father with a plan in place for the care of his daughter; that he lived in a very well kept neighborhood within blocks of a school where he intended to enroll I.L.G.; that Gilbert was a general manager for a local fast food restaurant and worked approximately 50 hours a week; that he had been faithful to Melissa throughout their marriage; that he maintained a consistent schedule for I.L.G.; and, that he rarely went out and preferred to spend his time with his daughter. (1) There was also evidence that Gilbert, who was 51years old at the time of trial, was financially reliant upon his father, still lived with his parents and did not pay for rent or utilities, received "loans" from his father to pay his divorce attorney, and had two older children from a previous marriage who lived out of state with whom he had little or no contact until very recently. Additionally, there was testimony that Gilbert had few friends or outside interests, worked long or unpredictable hours, relied on his elderly parents to care for I.L.G., and was vindictive towards Melissa and her boyfriend.
With respect to Melissa, the record reflects the following: that she filed for bankruptcy while the divorce was pending; that while still married to Gilbert, she met a man online and had his child; that she had no plans to marry the father of her newborn; that on more than one occasion she took I.L.G. with her to meet other men she had met online; that she didn't recall the last names of these men; and, that on more than one occasion, Melissa knowingly violated a court order by allowing her boyfriend to spend the night while I.L.G. was in her custody. (2)
Melissa points to testimony by Mary Bullock (3) and Eloise Gonzales (4) that Melissa, and not Gilbert, would be better suited to determine I.L.G.'s primary residence, and argues that as experts, their testimony should be probative. Additionally, Melissa argues that evidence that Gilbert "abandoned" his two children from a previous marriage, and that he had a "vindictive hatred of [Melissa] and [Melissa's boyfriend]" conclusively establishes that the jury's finding was not in I.L.G.'s best interests. Nevertheless, it is clear that the jurors, as the sole judges of the credibility of the witnesses and the weight to give their testimony, could accept lay testimony over that of experts when confronted with conflicting evidence. City of Keller, 168 S.W.3d at 819-20. In the present case, there were a number of witnesses who testified that Gilbert was a loving and devoted parent, including Gonzales and Melissa.
Additionally, the jury also heard testimony that Gilbert's two older children lived out of state, that Gilbert regretted not trying harder to stay in touch with them, and that he had made contact with them recently and was trying to establish a relationship with them. Gilbert also testified that he took a ten-week parenting course to improve his parenting skills and that he loved I.L.G. very much.
Thus, notwithstanding the testimony by Bullock and Gonzales that Melissa would be better suited to determine I.L.G.'s primary residence, the record here reflects sufficient competent evidence to support the jury's finding that Gilbert should have that exclusive right. See Id. at 810. We may not substitute our judgment for that of the jury where it is the province of the jury to weigh the evidence, assess the credibility of witnesses, and resolve any conflicts and inconsistencies. See McGalliard, 722 S.W.2d at 697.
Moreover, in determining the best interest of the child, a number of factors have been considered, although they are by no means exhaustive. See Holley v. Adams, 544 S.W.2d 367, 371 -372 (Tex. 1976). These 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 by these individuals; 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.
Having reviewed the evidence under the appropriate standards, and in light of the ample evidence that Gilbert is a loving father on whom I.L.G. can depend for her physical and moral needs, we hold that the evidence is both legally and factually sufficient to support the jury's finding that Gilbert have the exclusive right to determine her primary residence and that this finding is in I.L.G.'s best interest. We overrule appellant's issue.
Conclusion
Accordingly, we affirm the trial court's judgment awarding Gilbert the exclusive right to establish the primary residence of I.L.G.
Karen Angelini, Justice
1. Indeed, Melissa did not dispute that Gilbert was a good father and testified that she had no complaints regarding how Gilbert took care of I.L.G. Gilbert, on the other hand, expressed a number of concerns that he had regarding Melissa's parenting abilities.
2. There was also testimony by both parents that they had witnessed I.L.G., at age four, "straddling the corner of the bed and grunting and groaning [and] rubbing up and down." And although Melissa testified that I.L.G. never entered her bedroom when Melissa's boyfriend stayed over, Gilbert testified that he had been faithful to Melissa and still considered himself married, notwithstanding their separation.
3. Mary Bullock was court appointed to prepare a parenting/visitation plan.
4. Eloise Gonzales was court appointed to prepare a social study.
Appeal from 57th District Court of Bexar County
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 25, 2007
AFFIRMED
This is an appeal from a divorce and conservatorship proceeding between Gilbert Anthony Garcia ("Gilbert") and Melissa Jean Garcia ("Melissa").
Factual and Procedural Background
Melissa and Gilbert met online in June of 1999. Although Melissa resided in Michigan, and Gilbert resided in Texas, they married in Michigan in June of 2000, and proceeded to live there for several years. In March of 2001, the couple had a daughter, (" I. L.G."), and in November 2002, the family moved to Texas, where they lived with Gilbert's parents. Melissa, who is a registered nurse, worked full-time, while Gilbert mainly stayed home to care for their daughter.
The couple began experiencing marital problems and in January of 2004, Melissa moved out of her in-laws' home, taking I.L.G. with her. Gilbert filed for divorce in August of 2004, and Melissa subsequently filed her own divorce petition. The trial court subsequently granted the parties' cross-petitions for divorce, and a jury designated Melissa and Gilbert joint managing conservators of their five-year old daughter, giving Gilbert the exclusive right to determine I.L.G.'s primary residence.
Melissa appeals the jury's finding that Gilbert have the exclusive right to determine the principal residence of I.L.G., arguing that: 1) this finding is based on no evidence, factually insufficient evidence, or alternatively, against the great weight and preponderance of the evidence; 2) "the jury committ[ed] harmful error in disregarding the record, the expert testimony from Eloise Gonzales and Mary Bullock, and the substantial, conclusive evidence on uncontested facts in finding that [Gilbert] . . . have the exclusive right to determine the principal residence of the Child"; and 3) this finding is not in the child's best interest. We affirm.
Standard of Review
In reviewing a legal sufficiency challenge, we determine whether the evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002). We will sustain a no-evidence point if a finding is not supported by "anything more than a scintilla of evidence." In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002) (citing Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).
In making this determination, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827; In re J.F.C., 96 S.W.3d at 266. Evidence is legally insufficient when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law 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. City of Keller, 168 S.W.3d at 810.
In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In making this review, we do not substitute our judgment for that of the jury, even if a different answer could be reached on the evidence. See City of Keller, 168 S.W.3d at 821. It is well established that jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. Id. at 819; see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Therefore, a jury confronted with conflicting evidence may choose to believe one witness and disbelieve others; it may resolve inconsistencies in the testimony of any witness; or it may accept lay testimony over that of experts. City of Keller, 168 S.W.3d at 819-20.
Discussion
In the present case, the jury found that both parents should share custody of the child and named them joint managing conservators; however, the jury also determined that Gilbert would have the exclusive right to determine the primary residence of the child. See Tex. Fam. Code Ann. §101.016 (Vernon 2002). The record reflects that the jury was confronted with conflicting evidence in this regard. On the one hand, there was evidence of the following: that Gilbert was a loving, devoted father with a plan in place for the care of his daughter; that he lived in a very well kept neighborhood within blocks of a school where he intended to enroll I.L.G.; that Gilbert was a general manager for a local fast food restaurant and worked approximately 50 hours a week; that he had been faithful to Melissa throughout their marriage; that he maintained a consistent schedule for I.L.G.; and, that he rarely went out and preferred to spend his time with his daughter. (1) There was also evidence that Gilbert, who was 51years old at the time of trial, was financially reliant upon his father, still lived with his parents and did not pay for rent or utilities, received "loans" from his father to pay his divorce attorney, and had two older children from a previous marriage who lived out of state with whom he had little or no contact until very recently. Additionally, there was testimony that Gilbert had few friends or outside interests, worked long or unpredictable hours, relied on his elderly parents to care for I.L.G., and was vindictive towards Melissa and her boyfriend.
With respect to Melissa, the record reflects the following: that she filed for bankruptcy while the divorce was pending; that while still married to Gilbert, she met a man online and had his child; that she had no plans to marry the father of her newborn; that on more than one occasion she took I.L.G. with her to meet other men she had met online; that she didn't recall the last names of these men; and, that on more than one occasion, Melissa knowingly violated a court order by allowing her boyfriend to spend the night while I.L.G. was in her custody. (2)
Melissa points to testimony by Mary Bullock (3) and Eloise Gonzales (4) that Melissa, and not Gilbert, would be better suited to determine I.L.G.'s primary residence, and argues that as experts, their testimony should be probative. Additionally, Melissa argues that evidence that Gilbert "abandoned" his two children from a previous marriage, and that he had a "vindictive hatred of [Melissa] and [Melissa's boyfriend]" conclusively establishes that the jury's finding was not in I.L.G.'s best interests. Nevertheless, it is clear that the jurors, as the sole judges of the credibility of the witnesses and the weight to give their testimony, could accept lay testimony over that of experts when confronted with conflicting evidence. City of Keller, 168 S.W.3d at 819-20. In the present case, there were a number of witnesses who testified that Gilbert was a loving and devoted parent, including Gonzales and Melissa.
Additionally, the jury also heard testimony that Gilbert's two older children lived out of state, that Gilbert regretted not trying harder to stay in touch with them, and that he had made contact with them recently and was trying to establish a relationship with them. Gilbert also testified that he took a ten-week parenting course to improve his parenting skills and that he loved I.L.G. very much.
Thus, notwithstanding the testimony by Bullock and Gonzales that Melissa would be better suited to determine I.L.G.'s primary residence, the record here reflects sufficient competent evidence to support the jury's finding that Gilbert should have that exclusive right. See Id. at 810. We may not substitute our judgment for that of the jury where it is the province of the jury to weigh the evidence, assess the credibility of witnesses, and resolve any conflicts and inconsistencies. See McGalliard, 722 S.W.2d at 697.
Moreover, in determining the best interest of the child, a number of factors have been considered, although they are by no means exhaustive. See Holley v. Adams, 544 S.W.2d 367, 371 -372 (Tex. 1976). These 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 by these individuals; 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.
Having reviewed the evidence under the appropriate standards, and in light of the ample evidence that Gilbert is a loving father on whom I.L.G. can depend for her physical and moral needs, we hold that the evidence is both legally and factually sufficient to support the jury's finding that Gilbert have the exclusive right to determine her primary residence and that this finding is in I.L.G.'s best interest. We overrule appellant's issue.
Conclusion
Accordingly, we affirm the trial court's judgment awarding Gilbert the exclusive right to establish the primary residence of I.L.G.
Karen Angelini, Justice
1. Indeed, Melissa did not dispute that Gilbert was a good father and testified that she had no complaints regarding how Gilbert took care of I.L.G. Gilbert, on the other hand, expressed a number of concerns that he had regarding Melissa's parenting abilities.
2. There was also testimony by both parents that they had witnessed I.L.G., at age four, "straddling the corner of the bed and grunting and groaning [and] rubbing up and down." And although Melissa testified that I.L.G. never entered her bedroom when Melissa's boyfriend stayed over, Gilbert testified that he had been faithful to Melissa and still considered himself married, notwithstanding their separation.
3. Mary Bullock was court appointed to prepare a parenting/visitation plan.
4. Eloise Gonzales was court appointed to prepare a social study.
Mandamus on venue issue denied without prejudice in absence of sufficient record
In re Audrey Renee Hughes, No. 10-07-00121-CV (Tex.App.- Waco, Aug. 1, 2007)(Opinion by Justice Vance)(Before Chief Justice Gray, Justices Vance and Reyna)(venue mandamus)
Appeal from 82nd District Court of Robertson County
MEMORANDUM OPINION BY JUSTICE VANCE
After the trial court denied her motion to transfer the underlying suit (a motion to modify filed by real party Craig Davidson in a SAPCR) to Rockwall County, Relator Audrey Hughes filed this original proceeding, alleging that the trial court abused its discretion because the children principally resided in Rockwall County during the six months preceding the underlying suit. See Tex. Fam. Code Ann. § 155.201(b) (Vernon Supp. 2006).
Before the filing of Hughes’s motion to transfer, Davidson had filed the underlying motion to modify and served Hughes by substituted service. When Hughes did not timely answer, the trial court appointed an attorney ad litem for her and, upon hearing Davidson’s motion, entered a July 14, 2006 order removing Hughes as a joint managing conservator and appointing Davidson as sole managing conservator.
Hughes then answered and filed a motion for new trial, and on September 11, 2006, the trial court entered an agreed order granting Hughes’s motion for new trial, but that agreed order did not expressly address the July 14 order. On October 4, Hughes filed her motion to transfer, along with her “Original Counterpetition in Suit Affecting the Parent-Child Relationship,” which Davidson alleges was not properly served.
After Hughes brought this original proceeding for a writ of mandamus, Davidson filed a nonsuit of his motion to modify, which the trial court granted. Davidson contends that this proceeding is moot because no live pleading exists in the trial court; he alleges that Hughes’s counterpetition does not affect the mootness because it was not properly served.
Based on the record provided by the parties, we are unable to ascertain whether there exists an underlying suit that is subject to section 155.201(b). Nor are we able to ascertain what effect, if
any, the September 11 agreed order had on the July 14 order. For these reasons, we deny the petition for writ of mandamus without prejudice.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment only without a separate opinion.)
Petition denied
Opinion delivered and filed August 1, 2007
Appeal from 82nd District Court of Robertson County
MEMORANDUM OPINION BY JUSTICE VANCE
After the trial court denied her motion to transfer the underlying suit (a motion to modify filed by real party Craig Davidson in a SAPCR) to Rockwall County, Relator Audrey Hughes filed this original proceeding, alleging that the trial court abused its discretion because the children principally resided in Rockwall County during the six months preceding the underlying suit. See Tex. Fam. Code Ann. § 155.201(b) (Vernon Supp. 2006).
Before the filing of Hughes’s motion to transfer, Davidson had filed the underlying motion to modify and served Hughes by substituted service. When Hughes did not timely answer, the trial court appointed an attorney ad litem for her and, upon hearing Davidson’s motion, entered a July 14, 2006 order removing Hughes as a joint managing conservator and appointing Davidson as sole managing conservator.
Hughes then answered and filed a motion for new trial, and on September 11, 2006, the trial court entered an agreed order granting Hughes’s motion for new trial, but that agreed order did not expressly address the July 14 order. On October 4, Hughes filed her motion to transfer, along with her “Original Counterpetition in Suit Affecting the Parent-Child Relationship,” which Davidson alleges was not properly served.
After Hughes brought this original proceeding for a writ of mandamus, Davidson filed a nonsuit of his motion to modify, which the trial court granted. Davidson contends that this proceeding is moot because no live pleading exists in the trial court; he alleges that Hughes’s counterpetition does not affect the mootness because it was not properly served.
Based on the record provided by the parties, we are unable to ascertain whether there exists an underlying suit that is subject to section 155.201(b). Nor are we able to ascertain what effect, if
any, the September 11 agreed order had on the July 14 order. For these reasons, we deny the petition for writ of mandamus without prejudice.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment only without a separate opinion.)
Petition denied
Opinion delivered and filed August 1, 2007
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