In re N.V.R.

Full title: IN THE INTEREST OF N.V.R., D.A.R., AND J.T.R., CHILDREN

Court: Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Aug 31, 2017

No. 06-17-00023-CV (Tex. App. Aug. 31, 2017)

Opinion

No. 06-17-00023-CV

08-31-2017

IN THE INTEREST OF N.V.R., D.A.R., AND J.T.R., CHILDREN

Memorandum Opinion by Chief Justice Morriss

On Appeal from the 307th District Court Gregg County, Texas
Trial Court No. 2007-2400-DR Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

As the result of the most recent order affecting the parent-child relationships among the parents, William Runnels and Domanita Craddock-Neal, and their three children, Natasha, Jamal, and Devin,¹ what previously had been essentially equal parental rights were strengthened for Domanita and weakened for William. On appeal, William argues that, in the latest hearing, the trial court erroneously admitted therapy notes from his children's counselor into evidence, abused its discretion in entering the modification order, and erred in assessing attorney fees against him. We affirm the trial court's judgment because (1) Runnels failed to preserve his objection to the admission of the therapy notes, (2) no abuse of discretion is shown in the entry of the modification order, and (3) no abuse of discretion is shown in the assessment of attorney fees.

1 Because the "name of any person who was a minor when the underlying suit was filed" is considered sensitive data, we use pseudonyms to refer to the children. TEX. R. APP. P. 9.9(a)(3).

First, a bit more background is in order. In 2010, the trial court had appointed William and Domanita joint managing conservators of their children, Natasha, Jamal, and Devin, in a suit affecting the parent-child relationship (SAPCR). The 2010 order recited that "the primary residence of the children [was to] be Longview Independent School District," but did not specify which parent had the right to designate the primary residence of the children. Because William and Domanita had equal possession of the children under the order, neither was ordered to pay child support. During the school year, William and Domanita traded possession of the children each week.

In 2016, after finding the "week-on week-off" possession schedule unsuitable, William filed a petition to modify the 2010 order. William alleged that the circumstances of the parties had materially and substantially changed, requested that he be allowed to designate the primary residence of the children, sought possession pursuant to a standard possession order, and asked the trial court to order Domanita to pay child support. Domanita filed a counter-petition to modify the 2010 order. Her petition, which also sought the imposition of a standard possession order, asked that she be allowed to designate the children's primary residence and collect child support from William.

Following an evidentiary hearing, in which William appeared pro se, the trial court determined that the circumstances of the parties had materially and substantially changed since the 2010 order, gave Domanita the right to designate the children's primary residence, and ordered William to pay child support. The trial court further determined that William was to have possession of all of his children "[o]n weekends that occur[red] during the regular school term, beginning at the time the child's school [was] regularly dismissed, every other Friday and ending at the time the child's school resume[d] the following Monday." Additionally, William would have possession of Jamal and Devin "[o]n Mondays that occur[red] during the regular school term, beginning at the time the child's school [was] regularly dismissed every Monday and ending at the time school resume[d] on the following Tuesday." Holidays were divided in the same manner as in the 2010 possession order to ensure, generally, that each parent had equal time with the children.

At the time of the final hearing, Natasha was fourteen, Devin was thirteen, and Jamal was eleven. The trial court heard testimony from William, Domanita, and Camella Jones, a licensed professional counselor.

William testified that, since the 2010 order, Domanita had married Johnny Neal. William accused Neal of abusing the children. He testified that Neal had cussed at Jamal, told him that he was "stupid," and hit Jamal in the head when he would not go to bed. William also testified that Neal hit Devin with a bag of Legos after Devin refused to clean the house. Citing the fact that Domanita worked two jobs, William complained that the children were often left in Neal's care and alleged that Domanita was a neglectful parent. William also complained that Domanita had borrowed money from Natasha and accused Domanita of being late to drop off the children on August 26, 2016.

Domanita denied that she had ever interfered with William's possession schedule and asserted that William was mistaken about what time he was entitled to possess the children on August 26. She informed the trial court that William did not always answer her telephone calls or return her text messages, which created difficulty in their relationship. Domanita, who worked full time at Good Shepherd Medical Center and part-time at a clothing store, testified that Neal took care of the children when she was not at home. Domanita denied any physical abuse of the children. She further testified that William told the children not to speak to her when they were in his possession and called Domanita "tricky" in front of the children. Domanita also testified that William was claiming the children as dependents on his tax returns in years when Domanita was entitled to claim them as dependents.

Domanita also testified about the impact of the temporary orders on the children. She testified that Natasha could not focus and that Jamal and Devin had been suspended after fighting in school. During her cross-examination, Domanita admitted that she had placed Jamal and Devin in another school within the Longview Independent School District without consulting William. Their new school was closer to Domanita's home, which she represented to the school as the children's primary residence. Domanita testified that William's decision to file the SAPCR had distressed the children, who were in counseling with Jones.

Jones testified that, on two occasions, she met with Natasha, who was "struggling with a lot of guilt and responsibility for the relationship distress between her parents." Jones' therapy progress notes—the admission of which are challenged on appeal by William—reflected that, according to Natasha, William became angry when Domanita was not exactly on time for exchanges of possession. Natasha said, "I worry what [William] will say or do when he gets mad," and added, "I get tired of [William] saying my mama is a liar." According to Jones, Natasha expressed her wish to live full-time with her mother while visiting with William one or two days per week. Jones opined that Natasha was "extremely emotionally stressed" and required a change in her living situation to prevent being placed on "medicinal intervention to manage depressive and anxiety symptoms."

Jones also met with Jamal and Devin on three occasions. Jones testified that Jamal described Neal as "mean," but did not mention any physical abuse to her. According to the therapy progress notes, Jamal said, "I love my dad and I have fun with him. But, I am so scared to tell him how I really feel. He'll get mad." He made no negative statements about William, but stated that he wanted more time with Domanita, worried about her, and wondered if she still loved him.

Jones testified that Devin wanted to see his mother every week. Devin's therapy progress notes reflected that he did not want to upset William, wanted equal time with both of his parents, and wished for a possession schedule that was not confusing. According to Jones' notes, Devin told her, "[M]y dad mostly hate[s] my mom. He talks about her tricks, but I don't think she's tricky."

Based on statements made during therapy sessions, Jones' notes concluded that, although all three children loved and wanted to be with both of their parents, William had purposefully divided the family. William had also filed a complaint against Jones alleging that she had impersonated a Child Protective Services worker at the children's school. Jones denied the allegation. William, who read Jones' negative comments about him in the therapy progress notes, complained that Jones had never met with him before making her recommendations. He informed the trial court that he objected to Jones' counseling of the children.

(1) William Failed to Preserve His Objection to the Admission of the Therapy Notes

On appeal, William argues that the trial court should have excluded Jones' notes under Rule 403 of the Texas Rules of Evidence. We find that he has failed to preserve this appellate point for our review.

"As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . ." TEX. R. APP. P. 33.1(a)(1). William referred to Jones' therapy notes during his own testimony. When Jones' therapy notes were later offered into evidence, William stated, "It's my first time seeing them. Other than that, I don't have any objection." William failed to argue that the notes should be excluded under Rule 403. Therefore, he did not preserve his first point of error, which argues that "[t]he unfairly prejudiced therapy notes . . . confused the issues and mislead the court."

We overrule this point of error.

(2) No Abuse of Discretion Is Shown in the Entry of the Modification Order

William also argues that the trial court's order is not supported by legally and factually sufficient evidence. This case is governed by Section 156.101, which provides,

(a) 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 . . . .

TEX. FAM. CODE ANN. § 156.101 (West 2014). William contends that the trial court erroneously found (1) that the circumstances of the parties had materially and substantially changed and (2) that the modification was in the children's best interest.

We review orders regarding custody, control, and possession of children for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.—Texarkana 2013, no pet.). An abuse of discretion occurs when the trial court's ruling is arbitrary or unreasonable or has no reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); In re A.L.W., 356 S.W.3d 564, 566 (Tex. App.—Texarkana 2011, no pet.). In this type of review, evidentiary sufficiency is not an independent ground of error, but factors into our assessment of whether there was an abuse of discretion. P.M.G., 405 S.W.3d at 410; Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). In reviewing for abuse of discretion, we assess whether the trial court had sufficient evidence on which to exercise its discretion and, if it did, whether the court erred in exercising that discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). In reviewing for legal sufficiency, we consider only evidence favoring the trial court's ruling and affirm the judgment if it is correct on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Niskar, 136 S.W.3d at 753-54. In reviewing for factual sufficiency, we look at all of the evidence in the record, not just that in support of the judgment. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); In re G.R.W., 191 S.W.3d 896, 899 (Tex. App.—Texarkana 2006, no pet.). Findings are to be set aside if they are clearly wrong and manifestly unjust, if they shock the conscience, or if they clearly demonstrate bias because of how contrary they are to the overwhelming weight of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

If no findings of fact or conclusions of law are filed or requested, we can conclude that the court made all needed findings in support of the judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam).² When those findings of fact have support in the evidence, we uphold the judgment on any applicable theory of law. Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1992, no writ). Also, we defer to the trial court's resolution of conflicts in the evidence and its weighing of the testimony. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex. App.—El Paso 2002, no pet.).

2 The trial court conducted the final hearing October 10, 2016. Runnels filed requests for findings of fact and conclusions of law November 4, 2016. Section 153.258 states that, "in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, on written request made or filed with the court not later than 10 days after the date of the hearing" the trial court is to include in the order the reasons for the variance. TEX. FAM. CODE ANN. § 153.258 (West 2014); see TEX. FAM. CODE ANN. § 153.312 (West 2014) (describing the standard possession order for parents residing within 100 miles or less of each other). Because Runnels did not file his request for findings of fact within ten days of the hearing, his request was untimely. See Jacob v. Dobrei, 991 S.W.2d 462, 464 (Tex. App.—Dallas 1999, no pet.).

We turn first to the question of whether the circumstances of anyone affected by the previous order had materially and substantially changed since the previous order. TEX. FAM. CODE ANN. § 156.101(a)(1). That analysis is shortened by the fact that William's petition alleges that the circumstances of the parties had materially and substantially changed. This pleading constituted a judicial admission which precludes William from asserting on appeal that there were no material and substantial changes in the circumstances of the parties since the 2010 order.³ In re N.L.M.-B., No. 07-17-00131-CV, 2017 WL 3298380, at *3 (Tex. App.—Amarillo July 31, 2017, no pet.) (mem. op.).

3 In any event, the trial court noted that the "week-on week-off" possession schedule was not working because William and Domanita were not communicating—a fact that was demonstrated by the record.

We then turn to the ultimate question, whether the modifications set forth in the order were in the children's best interest. William's arguments that the trial court erred in this finding are largely based on his testimony relating to Neal's character and his representations that Domanita was a neglectful parent who allegedly failed to abide by the 2010 order in full. He argues that leaving the children with Neal, who abuses them, could not be in the children's best interest. Yet, William's testimony was countered by Domanita's testimony and by Jones' therapy notes, which did not reflect any report of abuse by Neal or Domanita. Essentially, William's pro se briefing is replete with credibility arguments and statements suggesting that William could not determine why the trial court ruled in favor of Domanita.

William's credibility arguments must be rejected. "[T]he Texas Family Code grants trial judges vast power and broad discretion over many important matters." Moore v. Moore, 383 S.W.3d 190, 194 (Tex. App.—Dallas 2012, pet. denied). The trial court in a bench trial is in the best position to judge witnesses' demeanor and credibility, so that court is entitled to latitude to accomplish that function. P.M.G., 405 S.W.3d at 410; In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). "We, therefore, defer to the trial court's judgment in matters involving factual resolutions and any credibility determinations that may have affected those resolutions." P.M.G., 405 S.W.3d at 410.

Here, the trial court impliedly found that William's account of certain events lacked credibility. With respect to the terms of the trial court's modification order, ample evidence supported the trial court's judgment. First, the 2010 order provided:

To minimize disruption of daily routines for the child, the parties are admonished to adhere to the following principles:

a. The child shall be permitted to speak freely with either conservator on the telephone or in person as provided herein.

b. The child should not hear of the other conservator's shortcomings to prevent the child being used as an object of continuing disharmony.

Yet, the trial court heard evidence that William prevented the children from speaking to their mother when they were in his possession and that, after becoming upset with Domanita, he would call her a "liar" and a "tricky" person in front of the children. The trial court also heard that William failed to return Domanita's calls and text messages on occasion. Evidence at trial further established that the children were afraid of angering William and that his hostility towards and frustration with Domanita imposed a significant amount of stress on them. The record demonstrated that Natasha and Jamal both told Jones that they wanted more time with Domanita and that Devin wished to see his mother every week.

Viewing the evidence in a light most favorable to the trial court's ruling, we conclude that the trial court did not abuse its discretion in deciding to modify the "week-on week-off" possession schedule to allow Domanita more time with the children and to name her as the parent with the exclusive right to designate the children's primary residence. Accordingly, we find the evidence legally sufficient to support the trial court's judgment. Considering all of the record evidence, we further conclude that the trial court's rulings were not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, shock the conscience, or to clearly demonstrate bias.

Taking into consideration our analysis of legal and factual sufficiency, we determine that the trial court had sufficient information on which to exercise its discretion and did not err in its application of that discretion. Therefore, we overrule this point of error.

(3) No Abuse of Discretion Is Shown in the Assessment of Attorney Fees

The trial court appointed Molly Larison as the court's amicus attorney, with the understanding that her fees would be split between William and Domanita. The trial court found that Larison was owed $5,950.00 and awarded judgment to Larison against William for $2,425.00 and against Domanita for $2,595.00. The trial court further entered judgment for Domanita's attorney, Vicki Haynes, against William in the amount of $1,500.00. William argues that the trial court erred in appointing Larison and in awarding Larison attorney fees as "necessaries for the benefit of the children." William also argues that the amount of Haynes' fees was unsupported by the record.

First, William does not challenge the amount of Larison's fee. Rather, he complains that the trial court, before her appointment, failed to take into account his ability to pay her fees. Thus, he challenges the appointment of the amicus attorney. An amicus attorney may be appointed in a private SAPCR where the best interest of the children is an issue. TEX. FAM. CODE ANN. § 107.021 (West 2014).⁴ This Court has previously determined that orders making appointments pursuant to Section 107.021 are "temporary orders" and that "complaints about temporary order[s] become moot" on the entry of a final order. In re E.R.C., 496 S.W.3d 270, 278-79 (Tex. App.—Texarkana 2016, pet. denied). Accordingly, William's first complaint relating to Larison's appointment is overruled as moot.

4 Section 107.021 states

(a) In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint one of the following:

(1) an amicus attorney; . . .

. . . .

(b) In determining whether to make an appointment under this section, the court:

(1) shall:

(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee . . . .

TEX. FAM. CODE ANN. § 107.021. At the hearing to appoint Larison, William was represented by retained counsel, who said that, although William would "have an issue" with Larison's fees, he was "fine" with Larison's appointment.

Next, William argues that the trial court erred in awarding judgment against him for a portion of Larison's fees. He cites to Tucker v. Thomas, 419 S.W.3d 292, 296, 301 (Tex. 2013), which concluded that a trial court cannot award attorney fees as child support. Yet, the trial court did not award Larrison's fees as child support. Rather, it entered judgment for Larison's fees pursuant to Section 107.023 of the Texas Family Code, which states,

(a) In a suit other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child . . . the following persons are entitled to reasonable fees and expenses in an amount set by the court and ordered to be paid by one or more parties to the suit:

(1) an attorney appointed as an amicus attorney or as an attorney ad litem for the child; . . . .

. . . .

(d) The court may determine that fees awarded under this subchapter to an amicus attorney . . . are necessaries for the benefit of the child.

TEX. FAM. CODE ANN. § 107.023 (West 2014). Accordingly, we find William's second complaint related to Larison's fees meritless.

Finally, William argues that the trial court erred in entering judgment for Haynes for attorney fees in the amount of $1,500.00 in the absence of an itemized billing statement. Under Section 106.002 of the Texas Family Code, "the court may render judgment for reasonable attorney's fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney." TEX. FAM. CODE ANN. § 106.002 (West 2014). "Section 106.002, applicable to all SAPCRs, invests a trial court with general discretion to render judgment for reasonable attorney's fees to be paid directly to a party's attorney." Tucker, 419 S.W.3d at 296. An appellate court reviews the trial court's award of attorney fees in a SAPCR for an abuse of discretion. See Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996).

Haynes testified at the final hearing and stated that she charged $250.00 per hour, that she had expended forty-five hours on the case, and that a reasonable fee would therefore be $11,250.00. Haynes further testified that Neal had paid her $3,000.00 and asked the trial court to award judgment against William for the remainder of her fee. The record also contained Haynes' itemized billing statement from a prior SAPCR between William and Domanita, in which she had charged $150.00 per hour, worked atotal of 28.60 hours, and billed a total of $4,290.00 in attorney fees. Based on Haynes' testimony and her prior billing statement, we cannot conclude that the trial court erred in awarding judgment for Haynes in the amount of $1,500.00.

We overrule William's last point of error complaining of attorney fees awarded to Larison and Haynes.

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice Date Submitted: August 30, 2017
Date Decided: August 31, 2017