Opinion
No. 14-10-00694-CV
Opinion filed August 16, 2011.
On Appeal from the 418th District Court Montgomery County, Texas, Trial Court Cause No. 09-07-06641-CV.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
MEMORANDUM OPINION
Appellants, Sandra and Martin Tate (collectively "the Tates"), appeal the portion of an "Order In Suit Affecting the Parent-Child Relationship" appointing appellee, Suzanne Collins, possessory conservator of the minor child, B.N.B., for whom the Tates were appointed sole managing conservators. We affirm.
BACKGROUND
The Tates are the child's maternal grandparents. Collins is the child's paternal grandmother. The Tates filed a petition seeking appointment as sole managing conservators of the child. Collins filed a counter petition, requesting that she be appointed "managing conservator" and the Tates designated possessory conservators. Trial was to a jury, which answered three questions as follows:
QUESTION 1
Who should be appointed managing conservator of the child?
You may answer by naming one person sole managing conservator or by naming two or more persons joint managing conservators.
Answer by writing the name of the person who should be appointed sole managing conservator or by writing the names of the two or more persons who should be appointed joint managing conservators.
Answer: Sandy and Martin Tate
If, in answer to Question 1, you have named two or more persons joint managing conservators of the child, then answer Question 2. Otherwise, do not answer Question 2.
QUESTION 2
Which joint managing conservators(s) should have exclusive right to designate the primary residence of the child?
Answer by writing the name(s) of the joint managing conservator(s).
Answer: Sandy and Martin Tate
If, in answer to Question 1, you have named one person sole managing conservator of the child, then answer Question 3. Otherwise, do not answer Question 3.
QUESTION 3
Should any of the following persons be appointed possessory conservator of the child?
Do not name any person you have named managing conservator in Question 1. Otherwise, you may name any, all, or none of the listed persons.
Answer "Yes" by the name of the person or persons who should be appointed possessory conservator and "No" by the name of the person or persons who should not be appointed.
Sandra Tate: [jury struck through]
Martin W. Tate: [jury struck through]
Suzanne Collins: Yes
Subsequently, the trial court conducted a proceeding to orally announce its intended rulings. During this proceeding, the Tates requested the court to disregard the jury's answer to Question 3, suggesting that the jury, by answering this question, did not follow the court's preliminary instruction. The court denied this request and announced it would appoint the Tates sole managing conservators and Collins a possessory conservator.
On June 11, 2010, the trial court signed an "Order in Suit Affecting the Parent-Child Relationship," appointing the Tates "sole managing conservators" and Collins a possessory conservator. The court also appointed the child's parents as possessory conservators, albeit with various restrictions on their rights of access.
ANALYSIS
On appeal, the Tates present four stated issues: (1) the jury erred as a matter of law by answering Question 3; (2) the trial court erred "by not omitting Question 3"; (3) the trial court erred as a matter of law by failing to conform the judgment "to the jury's omitting Question 3"; and (4) the trial court's appointment of the Tates as sole managing conservators and Collins as a possessory conservator did not conform to the jury's verdict selecting the Tates as joint managing conservators. The gist of the Tates' argument is that the trial court erred by giving effect to the jury's answer to Question 3 and appointing Collins a possessory conservator because the jury was essentially instructed not to answer Question 3 in light of its naming two persons as joint managing conservators in response to Question 1.
Question 3 was indeed conditional because the court instructed the jury to answer Question 3 only if it named one person as sole managing conservator in response to Question 1. The jury provided the names of two persons — Sandy and Martin Tate — in response to Question 1. However, the trial court clearly construed the jury's answer to Question 1 as treating the Tates, a married couple who reside together, as a singular person for purposes of conservatorship because the court appointed them collectively "sole" managing conservators — not joint managing conservators. In fact, this construction was consistent with the Tates' pleading in which they requested appointment as sole managing conservators. Further, despite the jury's selection of the Tates as the "joint managing conservators(s)" with the right to designate the child's primary residence in response to Question 2, the court also construed this answer as treating the Tates as a singular person; the court ordered that the Tates as sole managing conservator have the right to designate the child's primary residence. Accordingly, the trial court's implementing the answer to Question 3 and appointing Collins a possessory conservator was consistent with the court's construction of the answer to Question 1.
In their stated issues, the Tates suggest that the trial court erred by contravening the jury's answer to Question 1 and appointing them sole managing conservators instead of joint managing conservators. However, the Tates do not present any substantive argument or authority to support this suggestion, much less any reason that the trial court erred by construing the verdict consistent with the Tates' pleading. Specifically, the "Argument" section of the Tates' brief consists solely of a recitation of the abuse-of-discretion standard of review. Additionally, the "Summary of The Argument" section of their brief consists only of their complaint that the jury failed to follow the trial court's instruction relative to Question 3. Thus, the Tates have waived any contention that the court erred by appointing them collectively as sole managing conservators instead of joint managing conservators. See Tex. R. App. P. 38.1(h) (providing appellant's brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record); Brown v. Hearthwood II Owners Ass'n, Inc., 201 S.W.3d 153, 161 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (recognizing that failure to cite authority or advance substantive analysis waives appellate issue); GP II Energy, Inc. v. Chamberlain, Hrdlicka, White, Williams Martin, No. 14-07-00237-CV, 2008 WL 4354931, at *6 n. 8 (Tex. App.-Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.) (refusing to consider issues on which appellant failed to present argument).
Moreover, when the trial court orally announced its ruling, the Tates did not object to their appointment as sole managing conservators rather than joint managing conservators. Additionally, after the court signed its written order, the Tates did not file a motion for new trial to complain about this designation. Therefore, even if the Tates had sufficiently presented appellate argument challenging their appointment as sole managing conservators, they failed to preserve such a complaint for review. SeeTex. R. App. P. 33.1(a) (providing that, to preserve complaint for appellate review, the record must show complaint was made to trial court by a timely request, objection, or motion and trial court ruled on the complaint).
By failing to preserve a complaint, and demonstrate on appeal, that the trial court erred by appointing the Tates collectively as sole managing conservators, they cannot establish the court erred by then implementing the jury's answer to Question 3 and appointing Collins a possessory conservator. Accordingly, we overrule all of the Tates' issues and affirm the trial court's judgment.