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holding §§ 85.001 and (b) "do not require the trial court to recite [required] findings either on the record at the close of the hearing or in the protective order itself"
Summary of this case from Cox v. WaldenOpinion
No. 04-17-00207-CV
04-18-2018
IN THE INTEREST OF M.I.W., a Child
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2016CI14181
Honorable Michael E. Mery, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
The appealed protective order is signed by Judge Michael Mery, but recites Judge Larry Noll "heard the evidence, reviewed the pleadings and listened to the testimony," and ruled on the application for a protective order.
Mario appeals a protective order that restricts his conduct toward his minor son, M.I.W., and his ex-wife, Nancy. Mario argues Nancy's application for a protective order was not filed in the proper county and failed to include a copy of their divorce decree and prior orders affecting M.I.W. He also argues the trial court erred by failing to make a required finding at the close of the hearing on Nancy's application and by signing a written protective order that did not conform to the trial court's oral ruling at the hearing. We affirm the protective order.
We do not refer to the parties by their full names because M.I.W.'s name, which is inferable from the parties' full names, is considered sensitive data. See TEX. R. APP. P. 9.9(a)(3).
PROCEDURAL BACKGROUND
Nancy filed an emergency application for a temporary restraining order, alleging Mario had committed family violence. The trial court issued a temporary restraining order, and set a hearing to determine whether further orders were necessary. At the hearing, Nancy orally requested a protective order. Because Nancy had not filed a pleading requesting a protective order, the trial court extended the duration of the temporary restraining order and set a hearing on Nancy's request for a protective order. Nancy thereafter filed an application for a protective order.
At the September 23, 2016 hearing on Nancy's application, the trial court heard testimony from Nancy and Daniel Evans, with whom Nancy and M.I.W. resided. The testimony showed Mario came to Evans's home at 4:00 a.m. on August 27, 2016, with a gun and threatened to kill Nancy. The evidence also showed Mario had used methamphetamines, physically abused Nancy, and attempted to kill her. At the close of the hearing, the trial court found Mario committed family violence and granted the application for a protective order "in favor of" Nancy. The trial court signed a written protective order "in favor of" both Nancy and M.I.W. Mario filed a motion to vacate, which was denied, and thereafter filed a timely notice of appeal.
VENUE
Mario argues Nancy filed her application for a protective order in the wrong county. An application for a protective order may be filed in the county in which the applicant resides. TEX. FAM. CODE. ANN. § 82.003(1) (West 2014); In re Salgado, 53 S.W.3d 752, 762-63 (Tex. App.—El Paso 2001, orig. proceeding) (explaining an application for a protective order concerning a child after a divorce decree need not be filed in the court with continuing exclusive jurisdiction). Nancy is the applicant, and she and Evans testified she lives with Evans in Bexar County. Mario relies on testimony showing Nancy also has an apartment in Williamson County, but it was undisputed at the hearing that Bexar County is Nancy's primary residence. We hold Nancy filed her application for a protective order in a proper county. See TEX. FAM. CODE. ANN. § 82.003(1); In re Salgado, 53 S.W.3d at 762-63.
FAILURE TO INCLUDE DIVORCE DECREE & PRIOR ORDERS AFFECTING M.I.W.
Mario argues Nancy's application for a protective order was defective because it failed to include a copy of their divorce decree and prior court orders affecting M.I.W. See TEX. FAM. CODE. ANN. §§ 82.006, 82.007. Mario did not file special exceptions or otherwise complain about Nancy's pleadings until after the hearing on Nancy's application and after the trial court signed the protective order. Mario first complained Nancy's application was deficient in his motion to vacate, which he filed months after the trial court granted the protective order. Mario's complaints were not timely and, consequently, the complaints have not been preserved for our review. See TEX. R. APP. P. 33.1 (providing complaints not timely raised in the trial court are not preserved for appellate review); TEX. R. CIV. P. 90 (requiring a party to specially except to pleading defects before final order or judgment); Aquila Sw. Pipeline, Inc. v. Harmony Expl., Inc., 48 S.W.3d 225, 233 (Tex. App.—San Antonio 2001, pet. denied) (holding failure to timely object to a pleading defect by special exception waives the objection).
Mario also complains Nancy's application was defective because it did not allege sufficient venue facts.
FAILURE TO MAKE REQUIRED FINDINGS
Mario complains the trial court erred by failing to make an express finding required by Texas Family Code section 85.001(a)(2) and (b) that "family violence was likely to occur in the future." At the close of the hearing on Nancy's application for a protective order, the trial court found family violence had occurred, but did not expressly find whether "family violence was likely to occur in the future." Similarly, in the written protective order, the trial court found family violence had occurred, but did not expressly find whether "family violence was likely to occur in the future." The trial court did not make an express finding either at the hearing or in the protective order regarding future family violence.
Section 85.001 provides:
Sec. 85.001. REQUIRED FINDINGS AND ORDERS. (a) At the close of a hearing on an application for a protective order, the court shall find whether:TEX. FAM. CODE. ANN. § 85.001 (West 2014). We must construe this section in accordance with the plain meaning of its text. EXLP Leasing, LLC v. Galveston Cent. Appraisal Dist., No. 15-0683, 2018 WL 1122363, at *7 (Tex. Mar. 2, 2018).
(1) family violence has occurred; and
(2) family violence is likely to occur in the future.
(b) If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court:
(1) shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence; and
(2) may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order.
(c) A protective order that requires the first applicant to do or refrain from doing an act under Section 85.022 shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future.
(d) If the court renders a protective order for a period of more than two years, the court must include in the order a finding described by Section 85.025(a-1).
Section 85.001(a) and (b) require a trial court to find whether family violence has occurred and is likely to occur in the future at the close of the hearing on the application for a protective order. See § 85.001(a), (b). But no part of section 85.001(a) and (b) requires those findings to be express. See id. These provisions can be contrasted with section 85.001(c) and (d), which require the trial court to make express written findings. See id. § 85.001(c), (d). While section 85.001(a) and (b) require a trial court to make findings regarding the two elements that must be shown before a trial court may grant an application for a protective order, section 85.001(a) and (b) do not require the trial court to recite those findings either on the record at the close of the hearing or in the protective order itself. See id. § 85.001(a), (b). Furthermore, Mario did not comply with the requirements for requesting written findings of fact and conclusions of law under the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 296-299a. And, although Mario does not expressly challenge the evidence regarding likely future violence, we note there is evidence from which the trial court could have found that family violence was likely to occur in the future. We overrule Mario's issue regarding the trial court's failure to expressly make a finding of likely future family violence.
CONFLICT BETWEEN THE ORAL RULING AND THE WRITTEN PROTECTIVE ORDER
Mario argues the written protective order conflicts with the trial court's ruling at the hearing on Nancy's application. At the hearing, the trial court ruled:
Protective order is granted against Mario . . . in favor of Nancy . . . with return set out in the application, except that Mario . . . is entitled to exercise his visitation rights as provided for in his divorce decree of Williamson County . . . .(emphasis added). Although the written protective order recites "[a] protective order is granted in favor of Nancy . . . and the protected minor, [M.I.W.]" (emphasis added), the written protective order does not "conflict" with the oral pronouncement. And, even if there were a conflict between the oral pronouncement and the written order, a trial court's written order in a civil case prevails over a conflicting oral pronouncement. See Tamuno Ifiesimama v. Haile, 522 S.W.3d 675, 684 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
Mario asserts, without explanation or authority, that the emphasized language improperly restricts his access to M.I.W. Considering the protective order as whole, we disagree. To the extent Mario intended to complain the written protective order improperly conflicts with his rightful possession of M.I.W., we hold the issue was not sufficiently articulated or briefed. See TEX. R. APP. P. 38.1(i); In re Estate of Arizola, 401 S.W.3d 664, 671 (Tex. App.—San Antonio 2013, pet. denied) (holding issues may be waived on appeal due to inadequate briefing).
CONCLUSION
We affirm the trial court's protective order.
Luz Elena D. Chapa, Justice