Opinion
No. 10-04-00347-CV
Opinion Delivered and Filed November 16, 2005.
Appeal from the 170th District Court, McLennan County, Texas, Trial Court No. 99-2937-4.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Raising twenty-four issues, Appellant Richard O. Taylor, pro se, complains of the trial court's modification of the divorce decree regarding specific rights to his children. We will reverse the trial court's modification order and remand the cause.
Background
Richard and Valerie Taylor married in May 1994. In March 1995, two months after his discharge from the Marine Corps, Richard was arrested on a capital murder charge, and he bonded out of jail. The capital murder charge concerned an armed robbery in 1991 (when Richard was a high school senior) in which his codefendant fatally shot the store clerk. At the time of his arrest, Valerie was pregnant with Z., their first son, who was born in October 1995. Their twins were born in January 1997. Richard pleaded guilty to the capital murder charge in exchange for a forty-year sentence, and he has been incarcerated since August 1997.
The parties are familiar to us. In the December 20, 2002 divorce decree, the trial court appointed Valerie as sole managing conservator and Richard as possessory conservator of their three children. Several months later, in April 2003, Richard moved to modify the decree by creating orders to "assure the children will have frequent and continuing contact with [Richard] and [Richard's] rights of access to the children are facilitated." According to Richard, he petitioned for modified orders, and then amended his petition, because of Valerie's alleged violations of the current orders, his having to file two enforcement actions to redress those violations, and the trial court's rulings that the orders were not specific enough to enforce. Valerie filed a counter-petition for modification, asking the court to limit or remove Richard's access rights.
In an original proceeding, Richard obtained a conditional writ of mandamus compelling the trial court to act on his contempt motion (in which he alleged that Valerie had failed to comply with the divorce decree) and on his application for writ of habeas corpus ad testificandum by which he sought to appear and present evidence on the contempt motion. See In re Taylor, 28 S.W.3d 240, 243-44, 250 (Tex.App.-Waco 2000, orig. proceeding). We again conditionally granted mandamus relief after the trial court denied Taylor's writ application, apparently without considering the factors noted in the prior mandamus proceeding. See In re Taylor, 39 S.W.3d 406, 412-14 (Tex.App.-Waco 2001, orig. proceeding). We then reversed the February 18, 2000 divorce decree and remanded the cause, finding that Richard had a right to appear at the proceeding or to be present by other means and that he was entitled to a jury trial. Taylor v. Taylor, 63 S.W.3d 93, 98, 102 (Tex.App.-Waco 2001, no pet.). We next affirmed the December 20, 2002 divorce decree (except as to the trial court's order to have money withdrawn from Richard's prison trust account). Taylor v. Taylor, 2003 WL 23120178 (Tex.App.-Waco Dec. 31, 2003, pet. denied). Most recently, we affirmed a summary judgment against Richard on his claim that Valerie and others tortiously interfered with his court-ordered right of access to his children. Taylor v. Taylor, 2005 WL 428434 (Tex.App.-Waco Feb. 23, 2005, pet. denied).
Richard amended his petition, asking the trial court to order Valerie to provide him frequently with a great deal of information about the children's lives. Richard alleged that these modifications would be a positive improvement for and in the best interest of the children.
Specifically, Richard requested an order requiring Valerie to (1) provide Richard twice a month all information on the children's health, education, and welfare; (2) confer with Richard before making a decision on the children's health, education, and welfare, except in an emergency; (3) provide him with the names, addresses, and phone numbers of the children's physicians, dentists, psychologists, or daycare providers; (4) provide him with sixty-days' written notice of any intended change in the children's physicians, dentists, psychologists, or daycare providers; (5) designate Richard on the children's records as a person to be notified in an emergency; (6) contact Richard within twenty-four hours of a child's emergency; (7) provide Richard with five-days' notice of any child's extra-curricular activities; (8) provide a schedule for the children's extra-curricular activities; (9) provide Richard notice within twenty-four hours of becoming aware of a child's school activities. Richard also requested the trial court to restrict the residence of the children to McLennan County.
After an October 22, 2004 hearing in which Richard participated by telephone, the trial court issued an order nunc pro tunc that essentially granted in whole Valerie's petition and denied in whole Richard's petition. Specifically, the trial court removed the following pertinent rights from Richard:
1. to receive information from Valerie about the children's health, education, and welfare, except as otherwise provided;
2. to confer with Valerie to the extent possible before making a decision about the children's health, education, and welfare;
3. to be designated on the children's records as a person to be notified in case of an emergency;
4. to consent to medical, dental, and surgical treatment during an emergency;
5. the duty of care, control, protection, and reasonable discipline of the children;
6. the duty to support the children;
7. to consent to the children's noninvasive medical and dental care;
8. to consent to the children's medical, dental, and surgical treatment in an emergency; and
9. to direct the moral and religious training of the children.
The trial court awarded Valerie the right to designate the children's primary residence and removed her duties (1) to inform Richard in a timely manner of significant information about the children's health, education, and welfare and (2) to inform Richard of the name of her employer, address of employment, and work phone number, or of any intended change of that information. The trial court imposed the following additional duties on Valerie:
1. to inform Richard in writing of any change in the school being attended by the children, including the name of the school, within thirty days;
2. to mail a copy of each child's report card to Richard within seven days of receipt;
3. to inform Richard within seven days of any medical condition of the children requiring surgery, hospitalization, or both;
4. to mail a copy of the children's school pictures to Richard within seven days of receipt; and
5. to pay for the costs of each child's school picture.
Children's Testimony
Richard filed a pretrial motion for the children's attendance at trial, seeking an order from the trial court that required Valerie to bring the three children to the modification hearing. As of the hearing date, Z. was age nine and the twins were age seven years and nine months. In this motion, Richard requested the children's presence so that they could testify on the following issues pertinent to this appeal: (1) school, daycare, and home; (2) their relationship with Richard and their desires to visit him; and (3) their ability to identify Richard. Richard's motion stated that the children's presence was necessary to satisfy "statutory requirements" and that their testimony would assist the court in making decisions on their best interest. Richard stated that he intended to limit his questions according to their ages and development and that he had no intention of questioning the children in a manner that would damage their relationships with Valerie. Richard's motion further requested the trial judge to interview the children in chambers about any home, school, or daycare problems they may be having and any other matters deemed relevant or necessary by the judge.
In a written order and without stating any grounds, the trial court denied Richard's motion the day after its filing. In his second issue, Richard argues that the trial court erred in denying his motion for the children's attendance at the hearing and in not holding a qualification hearing.
Valerie asserts that Richard did not make an offer of proof and thus cannot show reversible error. And citing section 153.009(b) of the Family Code, she claims that because the children were under age ten, the trial court was not required to interview them. See TEX. FAM. CODE ANN. § 153.009(b) (Vernon 2002) (in a nonjury trial, "the court . . . may interview a child under 12 years of age" when the issue of managing conservatorship is contested). We agree with Valerie that the trial court did not abuse its discretion in denying the part of Richard's motion requesting the trial court to interview the children. Because Richard was not contesting Valerie's managing conservatorship, section 153.009(b) was not applicable. But to the extent Valerie asserts that section 153.009(b) gave the trial court discretion to exclude the children as witnesses, we disagree.
Other than the competency requirement in Texas Rule of Evidence 601(a)(2), we have found no authority that gives a trial court discretion to exclude a competent child witness from testifying in a modification proceeding. If a child is competent, the trial court does not have discretion to refuse to permit the child to testify in a custody proceeding. Callicott v. Callicott, 364 S.W.2d 455, 457-58 (Tex.Civ.App.-Houston 1963, writ ref'd n.r.e.) (reversing custody change because trial court erred in refusing to allow 8-year-old to testify in court or in chambers).
Children who, after being examined by the court, appear not to possess sufficient intellect to relate the transactions about which they are being questioned, are not competent to testify. TEX. R. EVID. 601(a)(2); Coachman v. State, 692 S.W.2d 940, 945 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd). "The role of the trial court is to make the initial determination of competency, not to assess the credibility or weight to be given the testimony." Berotte v. State, 992 S.W.2d 13, 18 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).
Children have testified on relevant matters in custody proceedings. See, e.g., Green v. Green, 850 S.W.2d 809, 813 (Tex. App-El Paso 1993, no writ) (daughter testified that she would prefer to have no visitation with father); Lewis v. Cushing, 444 S.W.2d 815, 817 (Tex.Civ.App.-Beaumont 1969, no writ) (12-year-old testified that she wanted to live with her mother, but jury found it was in her best interest to live with father).
The gist of Richard's amended petition for modification was to modify the decree to increase his rights and Valerie's duties so that Richard could, under the circumstances of his incarceration, attempt to have a meaningful relationship with his children. The children's testimony, while not controlling, would likely have included vital information on the issues in the modification hearing and the removal and modification of rights that Richard complains of. See Callicott, 364 S.W.2d at 457 (8-year-old boy "was in all probability qualified and very likely in possession of information that might well have been of vital importance in the determination of whether he should be taken from the custody, care and guidance of the father," and he "might well have confirmed or disaffirmed his happy and wholesome homelife in his father's home").
There was no legal basis for the trial court to refuse to grant Richard's motion for the children's attendance and testimony. We acknowledge Valerie's negative testimony about Richard and the trial court's many negative findings about Richard, including his litigious history, but "[f]undamental fairness dictates that a party not be arbitrarily deprived of the right to offer its evidence." Monsanto Co. v. Davis, 25 S.W.3d 773, 785 (Tex.App.-Waco 2000, pet. dism'd w.o.j.). The trial court erred in denying Richard's motion for the children's attendance at the hearing to testify if competent to do so.
Rule of Appellate Procedure 44.1 mandates that a judgment not be reversed upon a finding of error unless the error: (1) probably caused rendition of an improper judgment; or (2) probably prevented the appellant from presenting his case on appeal. See TEX. R. APP. P. 44.1(a); Monsanto, 25 S.W.3d at 786. Because the children were not present — by virtue of the trial court's denial of Richard's motion for their attendance — Richard was unable to make a formal offer of proof. Cf. Callicott, 364 S.W.2d at 456-57 (trial court refused to let father make a bill of exception by having child testify). Because of the likely importance of their testimony relating to the trial court's orders at issue in this appeal, we find that the trial court's error probably prevented Richard from presenting his case on appeal.
We sustain Richard's second issue. Because of our disposition of Richard's second issue, we need not address his other issues.
Conclusion
We reverse the trial court's order nunc pro tunc and remand this cause for further proceedings consistent with this opinion.
DISSENTING OPINION
The majority reverses this case on a faulty theory: that the trial court did not allow Richard's children to testify at the modification hearing. That is not what happened.
Richard filed a motion to try to compel Valerie to bring the children to the hearing. There is no mistaking what Richard wanted the trial court to do; as is evident from his prayer for relief:
. . . Petitioner prays this Court will grant this motion and order Respondent to bring the children to the trial on this cause.
The trial court never denied Richard the opportunity to present his children as witnesses. The court simply denied Richard's request to make Valerie bring the children to the hearing. The way to compel the presence of a witness at a proceeding is with a subpoena. See TEX. R. CIV. P. 176.6. Richard did not subpoena his children as witnesses. And it is evident from the record that Richard knew how to subpoena witnesses. If Richard had subpoenaed the children, and if the trial court had then not allowed them to testify, and if Richard had made an offer of proof, maybe the majority's result would be appropriate. But under the situation in this case where none of that happened, the analysis and the result are inappropriate.
The majority's reason for reversing this case is wrong. The trial court and the children should not be punished because Richard chose not to compel the children's presence at the hearing in the proper manner. We need to empower the trial court to protect children against abuses of the system. What the majority does here is not the way to do it.
I dissent.