Opinion
No. 10-06-00408-CV
Opinion delivered and filed July 11, 2007.
Appeal from the 85th District Court Brazos County, Texas, Trial Court No. 48,829-CV.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Raising eight issues, Appellant Carl Strain appeals the trial court's order denying the right to possession of and access to his four children. We will affirm.
Background
Strain and Debby Napoli divorced in 1997. At the time of the October 27, 2006 hearing at issue in this appeal, their four sons were ages 17 (B.C.S.), 16 (C.R.S.), 14 (L.D.S.), and 13 (M.H.S.). Strain, who has been appearing pro se throughout the proceedings, filed a motion for enforcement that sought an order forcing Napoli and his four sons to comply with orders allowing possession and access. The gist of Strain's argument below and in this appeal is that Napoli has alienated the children from him. Napoli, who had been named sole managing conservator in the parties' 1997 divorce decree in the 51st District Court of Tom Green County, filed a motion to modify seeking to deny Strain possession of and access to the children, alleging that he had begun reacting to the children in an escalating erratic and violent manner. After the evidentiary hearing, the trial court granted Napoli's motion. Specifically, in a November 27, 2006 order, the trial court ordered that Strain "shall not have possession of or access to the children."
Issue 1
Strain's first issue complains that Napoli committed perjury numerous times in the hearing and that her testimony should be disregarded. If anything, this complaint goes to the sufficiency of the evidence, which we address below in the sufficiency issues. We also note that Strain was able to cross-examine Napoli. Because the first issue does not complain of error by the trial court, we overrule it.
Issue 2
In his second issue, Strain asserts that the trial court breached its "judicial responsibility to orchestrate a fair and just hearing." Specifically, Strain first argues that the trial court "acted as though it were blind to the accumulated history incriminating the mother [Napoli]" and allowed her not to answer questions that would have revealed her "intentional orchestration of alienation." Like issue one, this complaint in part goes to the sufficiency of the evidence, but by not identifying in the reporter's record the questions, answers, objections, and trial court rulings pertinent to this issue, Strain's brief presents nothing for appellate review. The 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). A brief's issues that do not contain such argument "are inadequately briefed and present nothing for review." Batto v. Gafford, 119 S.W.3d 346, 350 (Tex.App.-Waco 2003, no pet.); see Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
Strain next asserts that the trial judge was biased because he failed to find that any of the children's alienation toward Strain was a result of Napoli's conduct. Strain also asserts that with respect to contact with the College Station Police Department and the Brazos County District Attorney's office over the oldest son's assault of Strain, the trial judge appeared irritated with Strain and had already made up his mind when Strain entered the courtroom for the hearing. Such complaints are properly brought only in a motion to recuse. See TEX. R. CIV. P. 18(b). Nothing is presented for appellate review. We overrule Strain's second issue.
Issue 3
Strain complains in his third issue that the trial court violated due process by not hearing Strain's motion for enforcement for over a year by granting Napoli's several motions for continuance. The clerk's record reflects that Strain's first motion for enforcement was filed on August 15, 2003, and was set for hearing on February 12, 2004. Napoli's attorney filed a motion for continuance, which Strain objected to but the trial court granted. The hearing took place in April 2004, and the trial court entered a July 2, 2004, order to modify the parent-child relationship. We have no record of that hearing, and Strain did not appeal any rulings from it. We are therefore presented with nothing to review.
Strain filed another motion for enforcement on August 30, 2004, but neither the parties nor the clerk's record identify its disposition. Strain also filed a motion to adjust child support on August 31, 2005, and on October 3, 2005, Napoli filed a pro se answer to that motion, which appears to have been set for hearing on November 22, 2005. On November 21, Napoli's attorney filed a motion for continuance of the November 22 hearing on Strain's motion to adjust.
Strain filed yet another motion for enforcement on November 16, 2005, and a fourth motion for enforcement was filed on December 12, 2005. It appears that Strain's motion (or motions) for enforcement was set for hearing for May 11, 2006. A different attorney for Napoli filed a motion for continuance on May 2, 2006; Strain filed a motion in opposition, complaining that granting Napoli's motion for continuance would deny him due process. The trial court granted Napoli's motion to continue the May 11 hearing, and the hearing on Strain's motion (or motions) for enforcement was held, according to Strain, in July 2006. We have no record of that hearing, and Strain did not appeal any rulings from it. Because we are presented with nothing to review with respect to Strain's third issue, we overrule it.
In his reply brief, Strain raises for the first time an equal protection issue ("New Issue 3") relating to this subject matter. By not raising this issue in his Appellant's Brief (or in the trial court), Strain has not properly presented it for appellate review. See TEX. R. APP. P. 38.1(e); see also id. 33.1(a)(1)(A). Regardless, because Strain did not appeal from the hearing that was the subject of Napoli's motion for continuance, we are presented with nothing to review.
The instant appeal arises from the October 27 hearing on Strain's September 11, 2006 motion for enforcement and on Napoli's October 11 motion to modify.
Issue 4
Strain's fourth issue, citing the Fifth Amendment, reads: "Violation of the United States Constitutional Requirement that no person shall be denied life, liberty [to spend time with one's own kids] or property . . . without due process of law." Within this issue, Strain presents three arguments. First, he asserts that a due process violation results from an April 13, 1998 protective order that Napoli obtained in Tom Green County arising from an alleged assault against her by Strain. According to Strain, Napoli's allegation was false, and the protective order, which prohibited him from having contact with Napoli or the children, was obtained without proper notice and unfairly kept him from his children for almost two years. Strain asserts that this protective order tainted the view of College Station school officials (including superintendent Eddie Coulson, who was a witness at the October 2006 hearing) of Strain. Strain admits that he never appealed the 1998 protective order, which is thus not properly or timely presented for appellate review.
Strain secondly complains of the same matter asserted in his third issue: that the trial court violated due process by not timely hearing Strain's several motions for enforcement as a result of Napoli's motions for continuance that were granted by the trial court. Strain essentially argues that, had the earlier hearings been timely held, the circumstances with his oldest son would have unfolded differently, the assault incident would not have occurred, and the October 2006 hearing and the order being appealed would not have occurred. Other than the Fifth Amendment, Strain cites no authority that cumulative continuances can violate due process, (see TEX. R. APP. P. 38.1(h)), and his causation and harm analysis is facially suspect. Moreover, as we have noted, Strain did not appeal the various continuance orders.
Lastly, Strain complains that Napoli's attorney failed to serve Napoli's May 2, 2006 motion for continuance of the May 11 hearing on Strain's pending motion (or motions) for enforcement. The trial court granted Napoli's motion for continuance on May 8; also on May 8, Strain filed a motion to deny the continuance upon learning that Napoli's motion for continuance had been granted. The hearing on Strain's motion (or motions) for enforcement was held in July 2006, according to Strain. We have no record of that hearing or of a ruling on Strain's motion to deny continuance, and Strain did not appeal any rulings from the July 2006 hearing. We are presented with nothing to review. For the above reasons, we overrule Strain's fourth issue.
Issue 5
For his fifth issue, Strain asserts that the trial judge violated his statutory duty to post the Family Code guidelines for possession of and access to a child at or near the entrance to the courtroom. See TEX. FAM. CODE ANN. § 111.003 (Vernon 2002). Napoli responds that Strain has not shown harm from such a violation; we agree. See TEX. R. APP. P. 44.1(a). Issue five is overruled.
Issues 6, 7, and 8
In issue six, Strain asserts that the evidence is factually insufficient to support a finding that it is in the children's best interest for Strain's visitation rights to be terminated. In issue seven, Strain asserts that the evidence is legally insufficient to support termination of Strain's visitation rights. Strain's eighth issue complains that the trial court made a "bad and illogical judicial judgment." As explained below, we construe these issues as complaints that the trial court abused its discretion in granting Napoli's motion to modify by denying Strain possession of or access to the children.
The trial court heard the following evidence at the October 2006 hearing
• Virginia Braley testified that she briefly dated Strain in 2003; she ended the relationship because she met someone else and because she considered Strain "very controlling" and "very micromanaging." She identified an email that she had sent Strain in which she related that her sister knew Napoli and told Braley that she had learned from Napoli that Strain had broken Napoli's jaw and caused her "multiple other significant injuries." Braley also said that Strain made her uncomfortable by showing her pictures of Napoli depicting Strain's alleged assault.
• Mark Shulz, the baseball coach of M.H.S., testified that he had agreed to let the team party be held at Strain's house, but he canceled it a week before because he received a call from Napoli, who told Shulz that M.H.S. did not want to have the party at Strain's house because M.H.S. was embarrassed about having it there and that she thought it would not be a good thing for M.H.S. Napoli also told him that Strain was not paying child support. (The record shows that Strain had several bouts of unemployment.) Shulz then called M.H.S. and asked him what he wanted, and M.H.S. said he would rather have the party somewhere else.
• Eddie Coulson, the College Station school superintendent, testified that Strain was denied access to the school other than in the front office because Coulson had formed the belief that Strain had become a College Station substitute teacher around 1998 so that he could be around his children despite the protective order that prohibited it. As a result, Coulson disallowed Strain from substitute teaching in College Station schools. Coulson also described a recent lawsuit threat from Strain. Coulson personally knows or knows of all four Strain children, and he described them all as "well adjusted."
• In May 2005, Jim Morgan rented to Strain a house that was about four blocks from Napoli's residence so that he could be near his children. When Napoli learned of this, she spoke with Morgan and said uncomplimentary things about Strain in an apparent attempt to get Morgan not to lease to Strain.
• Russell Klinkenberg rented a house to Strain from 2005 to 2006, and he has an 11-year-old son who enjoyed visiting Strain. Klinkenberg had no problems with Strain and thought Strain was an asset to the neighborhood.
• Strain testified that the two oldest sons resisted visitation and that the two youngest sons were beginning to resist. As a result, he worked out a deal with them that for a 24-hour visitation, if they would spend one quality hour with him, they could have twenty-three free hours. The oldest two then began to resist even that arrangement. On one occasion, when all four children refused to go on visitation, Strain began to physically carry M.H.S., the youngest, to the car. B.H.S. and C.R.S., the two oldest, intervened, with C.R.S. tackling Strain and B.H.S. hitting Strain in the face. The police were called. On another occasion, when Strain was entitled to possession of M.H.S., who was at a birthday party, Strain went to the party and found M.H.S. in the backyard where a pool party was taking place. When M.H.S. refused to go with Strain, he picked up M.H.S. in front of his friends and carried him to the car with M.H.S. struggling to avoid going. The host of the party prevailed on Strain to let M.H.S. come into the house to get his shoes and towel, upon which the host locked out Strain and called Napoli to get M.H.S. When Strain returned to the backyard, Napoli secreted M.H.S. away from the front. Napoli later described that incident as Strain carrying a "kicking and screaming" M.H.S. to the car, and when she arrived, M.H.S. was crying and "falling apart."
• Strain sent Napoli an email in July 2006 asking her what she would "offer" him if he agreed to move, respectively, out of the neighborhood, out of College Station, out of Brazos County, and at least 100 miles away. He denied that he was asking Napoli for money, explaining that he was willing to move away in exchange for Napoli's agreement not to obstruct his visitations.
• Napoli denied encouraging the children to avoid visitation with Strain. She said that B.C.S.'s hitting Strain was unusual behavior for him. She said none of the boys has an interest in visitation with Strain, and since the birthday party incident, M.H.S. fears Strain and has had nightmares of being killed by him. Other than M.H.S.'s fears, she said the children all are doing well in school and have no behavior problems.
We recently wrote:
A trial court has broad discretion in child custody matters. Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam); In re J.R.P., 55 S.W.3d 147, 151 (Tex.App.-Corpus Christi 2001, pet. denied). Thus, we review child custody orders under an abuse-of-discretion standard. See In re T.J.S., 71 S.W.3d 452, 458 (Tex.App.-Waco 2002, pet. denied); J.R.P., 55 S.W.3d at 151.
We do not conduct an independent review of findings of fact in a child custody case under traditional legal and factual sufficiency standards. See In re J.C.K., 143 S.W.3d 131, 135 (Tex.App.-Waco 2004, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex.App.-Houston [14th Dist.] 2002, no pet.); cf. Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44; accord Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
In re A.C.S., 157 S.W.3d 9, 20 (Tex.App.-Waco 2004, no pet.).
"With regard to issues of custody, control, possession, child support, and visitation, we give the trial court wide latitude and will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion." Garza v. Garza, 217 S.W.3d 536, 551 (Tex.App.-San Antonio 2006, no pet.) (citing In re J.R.D., 169 S.W.3d 740, 743 (Tex.App.-Austin 2005, pet. denied)). "Because the trial court is faced with the parties and their witnesses and observes their demeanor, it is in a better position to evaluate what will be in the best interest of the children." Id. at 551-52. A trial court abuses its discretion when it acts "without reference to any guiding rules or principles," or stated another way, when it acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and its findings will not be disturbed if there is evidence of probative force to support them. London v. London, 192 S.W.3d 6, 14 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).
Section 156.101(1) of the Family Code provides:
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 since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;. . . .
TEX. FAM. CODE ANN. § 156.101(1) (Vernon Supp. 2006).
There was no settlement in this case, and Strain does not assert that the trial court abused its discretion in finding a material change in the circumstances since the most recent possession order. Thus, the only relevant issue is whether the trial court abused its discretion in finding that Napoli's requested modification would be in the best interest of the children. Factors that may be considered in deciding what is in the best interest include:
(1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent.
A.C.S., 157 S.W.3d at 24 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re C.R.O., 96 S.W.3d 442, 451 (Tex.App.-Amarillo 2002, pet. denied); Bates v. Tesar, 81 S.W.3d 411, 434 (Tex.App.-El Paso 2002, no pet.)).
A child's best interest cannot be determined in a vacuum. Although consideration of the visitation rights of the noncustodial parent is important, we must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child's best interest.
Id. at 24-25 (quoting Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex.App.-Austin 2002, no pet.)).
When the evidence is viewed in light of the above considerations, there is legally and factually sufficient evidence to support the trial court's determination that the modification to no court-ordered visitation would be in the best interest of the children. Thus, it cannot be said that the trial court abused its discretion by modifying the possession order as it did. See In re Z.A.T., 193 S.W.3d 197, 202-04 (Tex.App.-Waco 2006, pet. denied) (trial court did not abuse discretion in severely restricting father's communications with children and mother, in part because of his abusive and vexatious litigation). Accordingly, issues six, seven, and eight are overruled.
We recognize the harshness of the trial court's ruling, as did the trial court at the end of the hearing, but the trial court left it up to Strain (via counseling, etc.) to seek a solution to resolve the relationship issues with his children:
I've been dealing with y'all since 1999. . . . And up until five minutes before the end of the last hearing I thought we had made a little progress, but it fell apart in the last five minutes of the last hearing. And my worst fears have come to pass. It is now turning to violence.
In 21 years on the bench as a trial judge not one time have I denied all visitation without terminating parental rights. . . . But at this point in time, Mr. Strain, I don't know any other way to describe what is occurring between you and your sons but terrorism. I cannot describe to you or diagnose the cause for the way you respond to your boys. I'm not a psychiatrist. . . . There is something in the way — in your psyche that requires you to control. . . .
I don't think you are any kind of a physical threat to your boys until there is a confrontation between you and them. These instances of physically trying to force visitation to me are terrifying, and I can certainly understand their reactions to them. . . .
I think Ms. Napoli has done everything I have asked her to do. I do not perceive any longer — as you do, Mr. Strain — that she is engaging in parental alienation. At one time I think she was. I don't see it anymore. I think all the alienation that's going on is coming from your side. And I don't have a solution for you. I'm going to have to leave that to the mental health professionals to come up with a solution, but I would recommend that you seek such because this kind of behavior . . . cannot continue. Not only for her sake — because the only thing that I'm really concerned with the most in all of the motions that are currently before the Court is what is in the best interest of those four boys.
Right now based upon the events that have occurred since the last hearing plus that history that I'm aware of, since 1999 in this case, I don't think the Court has any other alternative but to deny further court-ordered visitation. . . .
The parents are free to engage in visitation by agreement; and if the boys request it, I certainly encourage you to do that. But Mr. Strain's insistence — Mr. Strain's behavior just compels the Court to stop this before these boys really are damaged further. I will not continue to sit by and engage in social experimentation in an attempt to foster a father/son relationship that I cannot seem to make grow.
In his reply brief, Strain asserts eight new issues (issues 9-16). By not raising these issues in his Appellant's Brief, Strain has not properly presented them for appellate review. See TEX. R. APP. P. 38.1(e). Also, under our local rules, Strain failed to obtain leave to raise new issues. See 10TH TEX. APP. (WACO) LOC. R. 12(f).
Having overruled all of Strain's issues, we affirm the trial court's November 27, 2006, order.
Affirmed