Opinion
No. 05-07-01061-CV
Opinion Filed November 12, 2008.
On Appeal from the 382nd Judicial District Court Rockwall County, Texas, Trial Court Cause No. 1-04-488.
Before Justices Wright, Lang-Miers, and Mazzant.
MEMORANDUM OPINION
Kimberly Ann Roberson (Mother) appeals from a final decree of divorce. In three issues, she argues that the trial court abused its discretion when it denied her motion for continuance, appointed Cory Roberson (Father) as joint managing conservator, and allowed him to have unsupervised visitation. We conclude that the trial court did not abuse its discretion and affirm the trial court's judgment.
Background
Mother and Father were married and divorced twice. At the time of their second divorce, which is at issue in this appeal, Mother and Father had two daughters, six-year-old S.G.R. and twelve-year-old K.R.R. After a bench trial, the trial court entered a final decree of divorce. In the decree, the trial court appointed Mother and Father joint managing conservators of the children, and gave Mother the exclusive right to designate the children's primary residence. The trial court also ordered Father's visitations to be supervised for the first several weeks.
First Issue: Appointment of Father as Joint Managing Conservator
In her first issue, Mother contends that the trial court abused its discretion by appointing Father as joint managing conservator.
As a threshold issue, we must decide whether Mother has preserved this issue for appellate review. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (noting "error preservation in the trial court is a threshold to appellate review"). During a discussion between the parties and the trial court about whether and where K.R.R. would testify during the trial, Father's attorney said, "As I understand it, Judge, Mom is going to be the primary custodial parent." Mother responded, "I am seeking supervised visits." Mother handed the trial court a list of proposed topics for the court to discuss with K.R.R., and the following exchange occurred:
THE COURT: I can let you know, I'm not going to ask any questions about the schooling or anything else because they are conceding the point that you should be primary. So anything that shows that you are a better parent than he is is immaterial because they are conceding the fact that you'll be primary.
[Mother]: That's fine.
THE COURT: So the question now comes down to, and so you-are you in agreement as far as joint managing conservatorship with you being primary? You are just contesting-
[Mother]: Unsupervised.
THE COURT: Unsupervised visitation?
[Mother]: That is correct.
In her appellate brief, Mother acknowledges that, based on the reporter's record, "it may appear that [Mother] consented to the appointment of herself and [Father] as Joint Managing Conservators of their children." But Mother contends that the trial court misinterpreted her answer to a compound question and "put too much weight" on her answer. Alternatively, Mother argues that even if we conclude that she agreed to joint managing conservatorship, we should nevertheless overlook her acquiescence because the trial court was precluded from appointing Father as joint managing conservator under section 153.004(b) of the family code, due to "a history of abuse."
Specifically, Mother argues that "it is difficult to determine, from the transcript alone, whether [Mother] meant from her answer that her only issue at trial was unsupervised visitation or whether she did not mean to address the beginning of Jude Rakow's question at all."
To preserve a complaint for appellate review, "a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling." In re D.W., 249 S.W.3d 625, 631 (Tex.App.-Fort Worth 2008, pet. denied) (citing Tex. R. App. P. 33.1.). If a party fails to do this, error is not preserved, and the complaint is waived. Id.
Even if we assume that Mother did not intend to agree to joint managing conservatorship, the record does not demonstrate that she made the trial court aware of her disagreement at any point during or after trial. During trial, Mother did not state any objection to the appointment of both parents as joint managing conservators, nor did she mention section 153.004 to the trial court or argue that the court was precluded from appointing both parents as joint managing conservators. After trial, the trial court sent a letter to the parties outlining its ruling, in which it stated at the outset that "[t]he parties stipulated to Joint Managing Conservators with Mother to designate the primary residence of the children." The record does not reflect that Mother objected to this statement by the trial court. Likewise, Mother's motion for new trial does not include an argument that the trial court violated section 153.004 by naming Father as joint managing conservator. Under these facts, we conclude that Mother has failed to preserve this specific legal issue for appellate review. See Martinez v. Martinez, 157 S.W.3d 467, 471 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (appellant did not preserve for appellate review issue of whether joint managing conservatorship conflicted with section 153.004 because "[n]o mention of any of the provisions in [s]ection 153.004 was made by either party in the court below"); see also In re A.S.Z., No. 02-07-00259-CV, 2008 WL 3540251, at *2 (Tex.App.-Fort Worth August 14, 2008, no pet.) (mem. op.) (father could not complain on appeal about trial court's conservatorship decision because father "agreed to these provisions at trial"). We overrule Mother's first issue.
Second Issue: Father's Unsupervised Visitation
In the decree, the trial court ordered that, "until June 30, 2007, all visitations by [Father] shall be supervised by either Judie Brockway or by Barbara Graves" (i.e., Father's adoptive mother or biological mother). In her second issue, Mother argues that the trial court abused its discretion when it made this ruling because "there is no evidence on the record to show that the children's interest would change after one month."
Standard of Review
As a general rule, we give wide latitude to a trial court's decision on visitation matters. In re C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied). Generally the trial court's decision will be reversed only if it appears from the record as a whole that the trial court abused its discretion. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)).
In a non-jury trial, when no findings of fact or conclusions of law are requested by the parties or filed by the trial court, it is implied that the trial court made all the necessary findings to support its judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). When a reporter's record is brought forward on appeal, the trial court's implied findings may be challenged for legal and factual sufficiency the same as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). In family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standard of review; as a result, legal insufficiency is not an independent ground of reversible error, but instead constitutes a factor relevant to our assessment of whether the trial court abused its discretion. Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex.App.-Dallas 2007, no pet.).
To determine whether the trial court abused its discretion because the evidence is insufficient to support its decision, we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in its exercise of that discretion. Id. (citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied)). The applicable sufficiency review comes into play with regard to the first question. Moroch, 174 S.W.3d at 857. We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, we must conclude that the trial court's decision was neither arbitrary nor unreasonable. Id. Analysis
Judie Brockway, the daughters' grandmother and Father's adoptive mother, testified at trial. She stayed in close contact with Father, Mother, and the children until the divorce started. She testified that, to her knowledge, Father was not abusive or violent. When asked if she believed that Father "would be safe with his girls," she answered, "Well, of course, yes." But she agreed with Father's lawyer that because of the length of time that had elapsed since Father had seen the children, "some of the visitations, the first ones," should be supervised. This evidence supports the trial court's decision to order an initial period of supervised visitation followed by unsupervised visitation. Consequently, we conclude that the trial court's decision to allow unsupervised visitation after June 2007 was not arbitrary or unreasonable and that the trial court did not abuse its discretion.
In her appellate brief, Mother states that there is evidence in the record that Father brought a knife to visitation that "intimidated the children." This statement, however, is not supported by the page in the record Mother cites, nor does it appear to be supported elsewhere in the record. Instead, the record demonstrates that Father sharpened his children's pencils during visitation with a small knife, which Father described as a knife "that you clean your fingernail with." Likewise, Mother argues that there is evidence that during his visitations, Father left the children "totally unattended." Again, however, this statement is not supported by the page in the record Mother cites, nor does it appear to be supported elsewhere in the record.
We overrule Mother's second issue.
Third Issue: Denial of Mother's Motion for Continuance
Relevant Facts
Mother filed her original petition for divorce July 2004. After multiple continuances, the case was called for trial on March 21, 2007. Because Mother's attorney was still in trial in another court, the trial court agreed to swear in the witnesses and wait to resume the trial until March 26, 2007. When the trial resumed, Mother's attorney informed the trial judge, apparently for the first time, that Mother had filed a motion to recuse the trial judge on the afternoon of March 20, 2007. Although the motion was untimely as a matter of law, the trial judge immediately abated the trial until the motion to recuse was decided by an assigned judge. The motion was denied on April 4, 2007. That same day, and apparently at Mother's request, Mother's attorney filed a motion to withdraw as Mother's counsel, which Mother co-signed. Five days later, Mother filed a pro se motion for continuance and motion to set the case on the jury docket.
A recusal motion must be filed at least ten days before the date set for trial. Tex. R. Civ. P. 18a.
Mother's three pending motions were heard by the trial court on April 16, 2007, two days before trial was set to resume. The court first addressed the motion to withdraw. The trial court explained to Mother that the trial was proceeding, and that the court could not appoint her another attorney. The trial court specifically asked, "Do you understand that?" and Mother replied, "Yes, I do." The trial court then granted the motion to withdraw. The trial court also noted the multiple previous trial settings and the fact that trial had already started, and denied Mother's motion for continuance. Standard of Review
The trial court also noted that Mother's motion for a jury trial setting was untimely and denied that motion.
We review the denial of a motion for continuance under an abuse of discretion standard. Coats v. Ruiz, 198 S.W.3d 863, 877 (Tex.App.-Dallas 2006, no pet.). We do not disturb the trial court's ruling unless, after reviewing the entire record, we determine the trial court's ruling was clearly arbitrary and unreasonable. Id. Analysis
In her motion for new trial, which was overruled by operation of law, Mother argued that the trial court abused its discretion in denying her motion for continuance because she was forced to go forward with the trial pro se. On appeal, Mother argues that she "suffered from her lack of an attorney" because she did not know how to object to evidence, was not prepared to call witnesses, and "was also not able to effectively advocate her case for economic reimbursement to the community estate by [Father's] separate estate."
Mother argues that the trial court denied her motion for continuance "despite knowing that [Mother] was not then represented by counsel." As explained above, however, the record demonstrates that the trial court did not grant Mother's lawyer's motion to withdraw until after Mother confirmed that she understood that the trial was going forward and that she would not be appointed another lawyer.
Mother relies on Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986), to support her argument that the trial court abused its discretion in denying her motion for continuance. In Villegas, the trial court granted Villegas's attorney's motion to withdraw two days before trial. Id. at 625. Villegas appeared pro se at the trial and requested a continuance to obtain counsel and explained that he had learned of the motion to withdraw only six days earlier, he wanted to hire a particular lawyer, the lawyer would determine whether to take the case after examining the file, and Villegas's withdrawn attorney had not yet given the file to the lawyer and would not return his telephone calls. The trial court denied the motion for continuance. Id. at 626. The supreme court noted that "Villegas was not negligent or at fault for causing his attorney's withdrawal," and held that the denial of the continuance in that situation was an abuse of discretion. Id. at 626-27. This case is distinguishable from Villegas. Mother fired her attorney and co-signed her attorney's motion to withdraw. Before the trial court granted the motion to withdraw, the trial court explained to Mother that the trial was proceeding, the court could not appoint another lawyer, and Mother would be representing herself. Under these facts, we conclude that the trial court did not abuse its discretion in denying Mother's motion for continuance. We overrule Mother's third issue.
Conclusion
We overrule Mother's three issues and affirm the trial court's judgment.