Opinion
No. 05-08-00715-CV
Opinion Filed June 12, 2009.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-50411-07.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
Mother appeals the trial court's judgment designating Father as joint managing conservator with the right to establish the primary residence of their minor children. In three issues, Mother contends the trial court abused its discretion in denying her motion for continuance and in failing to interview the children following her request to do so. We affirm the trial court's judgment. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied is well settled.
On January 26, 2007, Father filed a petition to modify a 2002 conservatorship agreement, which gave Mother the right to establish the primary residence of the children. In March 2008, after a bench trial in which Mother appeared pro se, the trial court granted Father's petition and signed an order appointing Mother and Father as joint managing conservators, with Father receiving the exclusive right to designate the primary residence of the children. The trial court also terminated Father's obligation to pay child support to Mother, ordered Mother to pay child support to Father, and ordered Mother to pay Father approximately $32,500.00 in attorney's fees and other costs and expenses. Mother appealed.
Though Mother appeared pro se in the trial court, she was represented by counsel through the briefing stage in this Court.
In her first two issues, Mother argues the trial court committed reversible error by denying her motion for continuance filed approximately one month before the trial setting. In her brief, Mother asserts two reasons for a continuance: (1) additional time needed to hire new trial counsel after withdrawal of counsel forty-one days before trial, and (2) additional time needed to forward supplemental documentation to the court-appointed evaluator tasked with preparing the social study.
The denial of a motion for continuance is reviewed under an abuse of discretion standard. Coats v. Ruiz, 198 S.W.3d 863, 877 (Tex.App. 2006, no pet.). The denial will be reversed only if the trial judge acts in an arbitrary or unreasonable manner, or acts without reference to any guiding rules or principles. See Simon v. York Crane Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The party complaining of an abuse of discretion has the burden to present a record showing the abuse. See Simon, 739 S.W.2d at 795 .
Here, Mother requested a limited record insufficient to support her issues. Though she alleges error in the denial of a continuance, she fails to provide the motion, an affidavit, a reporter's record, or any record of a hearing or the trial court's ruling. The only record references to a continuance are two notations on the trial court's docket sheet. Docket entries, however, form no part of the record that may be considered on appeal. Landerman v. State Bar of Tex., 247 S.W.3d 426, 430 n. 2 (Tex.App. 2008, pet. denied); see also Bailey-Mason v. Mason, 122 S.W.3d 894, 897 (Tex.App. 2003, pet. denied) ("[D]ocket sheet entries alone are insufficient to constitute a judgment or decree of the court."). Absent a record, we must presume the evidence before the trial court was adequate to support the decision. Simon, 739 S.W.2d at 795; Green v. Kaposta, 152 S.W.3d 839, 842 (Tex.App. 2005, no pet.). We overrule Mother's first two issues.
Mother also provides no record related to withdrawal of counsel.
Throughout her brief, Mother cites to documents found in the appendix to her brief but which are not included in the appellate record. She also references a February 19, 2008 hearing; yet no transcript is included in the record or her appendix. We cannot consider documents cited in a brief and attached as appendices if they are not part of the record on appeal. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex.App. 2006, no pet.); see also In re J.H., 264 S.W.3d 919, 921 n. 1 (Tex.App. 2008, no pet.); Green, 152 S.W.3d at 841; Tex. R. App. P. 34.1 ("The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record.").
In her remaining issue, Mother argues the trial court committed reversible error when it failed to interview the children over age 12, in violation of the Texas Family Code. See Tex. Fam. Code § 153.009(a). Mother's brief contains no argument, analysis, citation to authority, or citation to the record in support of her complaint. To present an issue for this Court's review, a party's brief shall contain, among other things, "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). "Bare assertions of error, without argument or authority, waive error." In re N.E.B., 251 S.W.3d 211, 212 (Tex.App. 2008, no pet.); see also Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App. 2004, no pet.); Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex.App. 1995, writ denied). Because Mother presents no argument or authority on this issue, we conclude this issue is inadequately briefed. Mother has waived our review of her third issue.
Although Mother waived review of this issue, the record reveals that before trial began, the trial court offered twice to talk with the children as requested. The trial court also acknowledged Father's stipulation that the children would rather live with their mother and the fact that Mother filed managing conservatorship choice statements for the children. Mother stated she wanted to make things "less intrusive" for the children, and based on the trial court's understanding that the children had "spoken to someone" about "what they would like to do," Mother agreed to forego the in-chambers interview.
Based on the record before us, we conclude the trial court did not abuse its discretion. The judgment of the trial court is affirmed.