Opinion
05-23-01164-CV
12-23-2024
IN RE R.M.T., A CHILD
On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-16938
Before Justices Pedersen, III, Goldstein, and Kennedy
MEMORANDUM OPINION
NANCY KENNEDY JUSTICE
Father appeals pro se from a final decree of divorce, which divided property, allocated debts, and determined child custody and support. On appeal, Father asserts the trial court abused its discretion in conditioning his access to and possession of his son, R.M.T., on Father's wearing a Secure Continuous Remote Alcohol Monitor (SCRAM) device, in ordering him to make payments he contends exceed his ability to pay, by excluding certain evidence regarding his sobriety, and by relying on certain psychological evaluations in reaching its child custody determination. In addition, Father challenges the fairness of the process. We affirm the final decree of divorce. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Mother and Father married on May 9, 2015. The only child born to the marriage was a son, R.M.T. Mother and Father separated on October 15, 2020, and Mother filed her Original Petition for Divorce on October 30, 2020. Mother sought to be appointed the Sole Managing Conservator of R.M.T., who was then four years' old, and requested psychiatric evaluations of Father and R.M.T. Father was represented by counsel during most of the case, but proceeded pro se to trial before the court.
Trial commenced on September 18, 2023, and concluded on September 20. The trial witnesses were: Dr. Victoria Harvey, the court-appointed clinical psychologist who conducted psychological evaluations of Father and Mother;Sharly Terhall, the court-appointed child custody evaluator; Mother; Mother's father and mother, who testified about loans they made to Mother to pay her attorney's fees in this case; Mother's attorney, who testified regarding attorney's fees; Father; Father's mother and two friends of Father's, who testified about their observations of Father and R.M.T.; and Tamara Snell, a paralegal who revealed that she was observing the proceedings on behalf of an attorney representing the ex-husband of Father's girlfriend.
Dr. Harvey did not evaluate R.M.T.
In addition, the trial court took judicial notice of all the orders in the case.Dr. Harvey's report of her evaluation of Father, dated March 12, 2022, and Terhall's May 16, 2022 custody evaluation were admitted into evidence by stipulation of the parties and, in addition, were later offered into evidence by Father. Dr. Harvey contacted two of Father's substance abuse evaluators and Father's former therapist and received information concerning Father from other individuals, including family members. In addition, she received numerous records, including those of one of the substance abuse evaluators and the therapist, deposition transcripts, Soberlink testing results and details, emails and text messages between Mother and Father, and bank account statements reflecting Father's international travels, often with his girlfriend, and restaurant charges in the thousands of dollars, which Father claimed were business related.
The appellate record does not include all of those orders. We presume those orders support the trial court's ultimate determination in this case. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).
Dr. Harvey concluded Father meets the criteria for alcohol use disorder, moderate; other specified personality disorder, anti-social traits; and generalized anxiety disorder, as a provisional diagnosis. A summary of Dr. Harvey's conclusions was admitted into evidence without objection. In addition, Dr. Harvey found Father had been deceitful with her and others, has a pattern of deliberate defiance, a pervasive pattern of externalization of blame and deflection of responsibility, vindictiveness, is consistently irresponsible, and had been noncompliant with court orders. Dr. Harvey believed Father's anti-social personality traits would make it difficult to co-parent with him.
It appears that, at some point during the case, because of Father's diagnosis of alcohol use disorder, he was ordered to participate in Soberlink Remote Alcohol Monitoring. Dr. Harvey indicated that Father claimed his business and travel schedules made it difficult for him to comply with the ordered Soberlink testing, so she recommended SCRAM as an alternative to give Father an opportunity to document sobriety to the court.
It appears the Soberlink monitoring required setting aside three times per day for testing, while the SCRAM device provided for automated testing.
Terhall testified that in arriving at her conclusions and recommendations in this case as the court-appointed child custody evaluator, she relied, in part, on Dr. Harvey's report. She had concerns about Father's parenting abilities. She found no indication Father was complying with the court order not to drink when he had possession of R.M.T. and Father admitted to her that he was not compliant with the order not to drink. She further established that Father's compliance with Soberlink was sporadic and at times non-existent. She testified he stopped Soberlink testing even though he knew it would cause him to have to forego his access to R.M.T. and doing so called into question his ability to make child-focused decisions. She further explained that in the early part of 2021, Father was not in R.M.T.'s life for a period of about 6 months because of Soberlink non-compliance and for another period of time beginning in June 2022 because he would not comply with the SCRAM order.Terhall testified Father violated another court order by moving in with his girlfriend and her two children. She established that the orders he violated were enacted for the safety and welfare of R.M.T. She was of the opinion that Father's demonstrative impulsive, oppositional, and vindictive inclinations are a parenting concern insofar as they have the potential for significant and chronic emotional disruption of R.M.T and do not appear to be adequately acknowledged or managed by Father. This concern was supported by two substance abuse evaluations conducted in 2020 and 2021, Father's caustic text exchanges with Mother, the 2017 to 2020 therapy records of R.M.T., input from others received as part of the child custody evaluation, the content of Dr. Harvey's report, and the observation and session records of Father's therapist. Terhall further indicated that Father's decision not to wear the SCRAM device and to absent himself from R.M.T.'s life for the past 15 months caused concern for her as there are a lot of things to consider in future planning that she was not looking at when she completed her report.
It was established at trial that Father had not seen or had any contact with R.M.T. in the 15 months prior to trial.
Father was prohibited from having R.M.T. in the presence of a person with whom he was in an intimate or dating relationship.
Father acknowledged that his absence from R.M.T.'s life may have harmed him psychologically and emotionally. Father admitted that he has an alcohol use disorder and anti-social traits. He recognized that he had verbally abused Mother during the pendency of this case and had been cruel to her. Father acknowledged that: despite the court's order he not consume alcohol, he continued to do so knowing it would restrict his time with R.M.T.; he did not comply with Dr. Harvey's request for a PETH test and EtG urine alcohol test; and that the court had good reason to be concerned about his alcohol use at the time of trial. In addition, Father admitted that he had not paid any ordered child support for a significant period of time.
These tests detect alcohol use.
On October 19, 2023, the trial judge rendered her memorandum ruling appointing Mother the Sole Managing Conservator and Father the Possessory Conservator of R.M.T., providing Father the right to visitation to be supervised for 2 hours per week until he provides Mother evidence of 6 months of abstinence from alcohol by submitting to the procedures outlined in the prior temporary order (SCRAM); ordering Father to pay child support of $2,500 per month beginning on November 1, 2023; ordering Mother to continue providing health, dental, and vision insurance for R.M.T., with uninsured expenses to be split 50-50; and reserving determination of the arrearages that had accrued during the time the temporary orders were in effect. In connection with the memorandum ruling, the trial court granted Mother's requests for various findings.
The temporary orders are not in the record before us.
On November 17, 2023, the trial court signed the Final Decree of Divorce, dissolving the marriage between Mother and Father on the ground of cruelty, and finding the following orders to be in the best interest of R.M.T.:
• That Mother is appointed Sole Managing Conservator and Father is appointed Possessory Conservator of R.M.T.;
• That Father wear a SCRAM device 24 hours a day, 7 days a week, until further order of the court as a condition to his access to and possession of R.M.T.;
• That Recovery Monitoring Solutions ("RMS") is appointed to administer Father's SCRAM device at Father's sole cost and expense;
• That RMS notify Mother through counsel of any acts of non-compliance by Father;
• That once Father provides Mother with written evidence of 6 months of SCRAM device compliance per the sworn affidavit of the custodian of records for RMS, then the court shall find that same constitutes a material and substantial change in circumstances sufficient to support a Petition to Modify the Possession and Access Terms of the Final Decree of Divorce;
• That Father shall have the right to 2 hours of supervised possession of R.M.T. each week; • That Father pay the supervisor's fees; and
• That Father pay child support of $2,500 per month, with the first payment being due on November 1, 2023.In addition, the court found that application of the statutory child support guidelines would be unjust and inappropriate in this case because the evidence adduced at trial supports the findings and conclusions that (1) the gross resources of Father are at least $135,000 per year or $11,250 per month, (2) Mother provides and pays for R.M.T.'s health and dental insurance, (3) the proven needs of the child are at least $5,000 per month, and (4) due to Father's history of failure to abide by court orders and related matters, Mother will have possession of R.M.T. at all times, save and except for 2 hours per week. The final decree also awarded certain property to Mother and Father, allocated debts among the parties, and awarded Mother attorney's fees, sanctions, expenses and costs totaling $254,440.
Father does not challenge the division of property on appeal.
On November 20, 2023, Father filed a document titled "Motion to Modify Final Decree of Divorce" referencing Rule 329b of the Texas Rules of Civil Procedure. The trial court conducted a hearing on that motion on January 18, 2024. The trial judge noted that a Rule 329 motion and a motion to modify under Chapter 156 of the Texas Family Code are not the same. It appears the trial court determined Father did not follow the procedures set forth in Chapter 156 to modify the judgment based on a material and substantial change in circumstances and the court proceeded to address only Father's complaint that it was a mistake to include a provision in the Final Decree of Divorce permanently enjoining him from "[c]onsuming alcohol at any time, for any reason." At the conclusion of the hearing, the trial court indicated it would reform the decree to strike that provision.
Rule 329b addresses the timing for filing of motions for new trial and motions to modify, correct, or reform judgments. TEX. R. EVID. 329b.
Under Chapter 156, a court may modify an order that provides for the conservatorship, support, or possession of and access to a child if doing so would be in the best interest of the child and upon a showing of a material and substantial change in circumstances. TEX. FAM. CODE § 156.101.
The Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification of a suit affecting the parent-child relationship order. FAM. § 156.004.
On November 13, 2023, Father requested that the court issue findings of fact and conclusions of law. On December 1, 2023, the court made and filed findings of fact and conclusions of law. In doing so, the court found it is in the best interest of R.M.T. that Mother be appointed the Sole Managing Conservator of R.M.T. and that Father be appointed the Possessory Conservator of R.M.T. The court explained that Father's periods of possession vary from the standard possession order because he has a history and pattern of deliberate defiance of the court's orders that were established for the safety and welfare of the child, including but not limited to the following:
• His repeated non-compliance with Soberlink testing;
• His failure to submit to alcohol testing requested by the court-appointed psychological evaluator;
• His failure to submit to alcohol testing ordered by the Court;
• His false testimony under oath concerning his alcohol use;
• His failed PETH test in May of 2022, following a court order that he abstain from consuming alcohol at any time, or for any reason; and
• His violation of the Court's injunction of July 12, 2021, prohibiting him from having the child in the presence of a person with whom he is involved in an intimate or dating relationship.
In addition, the trial court found Father: meets the following criteria for Antisocial Personality Disorder, deceitfulness, consistent irresponsibility, and lack of remorse; meets the DSM-5 (The Diagnostic and Statistical Manual of Mental Illness) criteria for Alcohol Use Disorder; and demonstrated impulsive, oppositional, and vindictive inclinations that pose a danger to R.M.T. in that they have the potential for significant and chronic emotional disruption for R.M.T. and that Father has not adequately acknowledged or adequately managed same. Pursuant to Texas Family Code section 153.072, the trial court concluded that any limitations of Father's rights and duties as a possessory conservator are in the best interest of R.M.T.
With respect to child support, the trial court found:
• The application of the percentage guidelines in this case would be unjust and inappropriate; and
• The evidence adduced at trial supports the conclusion that the gross resources of Father are $11,250 and the net resources of Father are $8,500.
The court explained the reasons the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines of section 154.125 of the Texas Family Code are:
• Mother provides and pays for R.M.T's health and dental insurance;
• The needs of R.M.T. are at least $5,000 per month; and
• Due to Father's history of failure to abide by court orders, Mother will have possession of the child at all times, save and except 2 hours per week. Mother incurs childcare expenses in order to maintain gainful employment. Father caused Mother to incur substantial debt for attorney's fees and costs with his campaign of abusive, groundless, baseless and frivolous motions throughout the case.
In addition, the trial court found Father had failed to pay the $50,000 sanction and the $4,400 in attorney's fees awarded Mother on August 14, 2023, and that Mother has incurred at least $200,000 as reasonable attorney's fees, expenses and costs.
PRO SE REPRESENTATION - PRESERVATION OF COMPLAINTS ON APPEAL
As an initial matter, we note that we construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Washington v. Bank of New York, 362 S.W.3d 853, 854 (Tex. App.-Dallas 2012, no pet.); Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677-78 (Tex. App.-Dallas 2004, pet. denied). A pro se litigant is required to properly present his case on appeal, just as he is required to do at the trial court. Strange, 126 S.W.3d at 678. If this were not the rule, pro se litigants would be given an unfair advantage over those parties represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Therefore, we cannot make allowances just because a litigant is not an attorney. Bailey v. Rogers & Keyser, 631 S.W.2d 784, 786 (Tex. App.- Austin 1982, no writ).
Generally, to preserve an error for appeal, a party must make a timely and specific request, objection, or motion and obtain a ruling thereon. See TEX. R. APP. P. 33.1(a). An appellant's pro se status does not relieve him from the preservation-of-error requirements applicable to licensed attorneys. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam) (pro se litigants are not exempt from the rules of procedure); see also Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. App.-Houston [14th Dist.] 2006, pet. denied).
Additionally, when making an argument on appeal, we require the parties to make clear and concise arguments, cite to appropriate authorities, and provide citations to the record. TEX. R. APP. P. 38.1(i). An issue on appeal unsupported by argument or appropriate citation to legal authority and the record presents nothing for the court to review. Birnbaum v. Law Offices of G. David Westfall, 120 S.W.3d 470, 477 (Tex. App.-Dallas 2003, pet. denied).
STANDARD OF REVIEW - SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP PROCEEDINGS
"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 538, 551 (Tex. App.-San Antonio 2006, no pet.); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (applying abuse of discretion standard to possession order). 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 child. In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.-Austin 2005, pet. denied); see also In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.-Dallas 2003, no pet.) ("[T]he trial judge is in the best situation to observe the demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned by merely reading the record.").
DISCUSSION
I. Involuntary Termination of Parental Rights v. Restrictions on Possession and Access - Different Standards of Proof
As an initial matter we note that Father suggests the restrictions and conditions on his visitation are tantamount to termination of his parental rights to R.M.T. and in arguing several of his issues he relies on the law applicable to involuntary termination of parental rights. A parental-termination proceeding permanently and completely severs the natural right that exists between a parent and child. TEX. FAM. CODE § 161.206(b). It differs materially from a proceeding incident to divorce that imposes limitations and conditions on visitation and establishes child support obligations, which can be modified post judgment if there has been a material and substantial change in circumstances. See FAM. §§ 156.101; 156.401.
Specifically, Father cites In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013) (statute authorizing termination of parental rights based on failure to comply with provisions of a court order necessary for return of child required trial court to find that child had been removed as result of actual or threatened abuse or neglect), and In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (burden of proof in termination cases is by clear and convincing evidence).
Moreover, the quantum of proof required to support a termination decision differs from the level necessary to support a conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Termination decisions must be supported by clear and convincing evidence. Id. Due process compels this heightened standard because terminating the parent-child relationship imposes permanent, irrevocable consequences. Id. On the other hand, findings regarding conservatorship and child support are governed by a preponderance-of-the-evidence standard. FAM. §105.005; see also Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). These differing proof standards, in turn, affect the method of appellate review, which is more stringent for termination decisions than for those regarding conservatorship. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
In evaluating the factual sufficiency of evidence supporting termination, an appellate court must consider "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d at 25. Legal-sufficiency review is similarly heightened when parental rights have been terminated. In re J.F.C., 96 S.W.3d at 266. Conservatorship determinations, in contrast, are subject to review only for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable. Gillespie, 644 S.W.2d at 451.
For these reasons, we conclude Father's reliance on parental-termination cases and assertion that the trial court's determinations must be supported by clear and convincing evidence are misplaced and, where appropriate, our review will be confined to the law concerning conservatorship and support determinations and the abuse-of-discretion standard of review.
II. SCRAM Requirement
In his first issue, Father asserts "the trial court abused its discretion by infringing on [his] fundamental liberty interests as a parent without sufficient evidence of harm to the child."
Father recognizes that the best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child. See FAM. § 153.002. Best interest is a term of art encompassing a broad, facts-and-circumstances-based evaluation that is accorded significant discretion. In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
Father references the Holley best interest factors and asserts this Court should consider whether the trial court properly assessed each factor. Father does not himself conduct any analysis of those factors, and we are not obliged to conduct an independent review of the record and the Holley factors. See Strange, 126 S.W.3d at 678. Moreover, proof of best interest is not limited to the Holley factors, nor do all factors always apply in every case. In re A.R., 236 S.W.3d 460, 480 (Tex. App.- Dallas 2007, no pet.) (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
See Holley v. Adams, 544 S.W.2d 367, 372-73 (Tex. 1976) (setting forth factors that may be considered in ascertaining the best interest of the child in parental-termination proceeding).
Father contends that the trial court erred in imposing a SCRAM requirement because he proved no evidence exists that R.M.T. is or ever was in danger due to alcohol consumption or otherwise and urges application of the clear and convincing evidence standard of proof applicable to parental-termination cases, which, as stated supra, does not apply in this case.
In a case such as this, involving the care, custody, and control of a child, the trial court has broad discretion to fashion orders that are in the best interest of the child consistent with the allegations, general prayers for relief and evidence, without the need for strict proof of the existence of a wrongful act, imminent harm, and irreparable injury. FAM. § 153.002; In re C.E.C., No. 05-17-01482-CV, 2018 WL 3062454, at *8 (Tex. App.-Dallas June 21, 2018, no pet.) (mem. op.); King v. Lyons, 457 S.W.3d 122, 131 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Under the abuse-of-discretion standard applicable here, legal and factual sufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re C.H.C., 392 S.W.3d 347, 349 (Tex. App.- Dallas 2013, no pet.); In re H.D.C., 474 S.W.3d 758, 763 (Tex. App.-Houston [14th Dist.] 2014, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's exercise of its discretion. In re C.H.C., 392 S.W.3d at 349; In re H.D.C., 474 S.W.3d at 763.
In its findings of fact, the trial court found Father had a history and pattern of deliberate defiance of the court's orders that were established for the safety and welfare of the child including:
• His repeated non-compliance with Soberlink testing;
• His failure to submit to alcohol testing requested by the court-appointed psychological evaluator;
• His failure to submit to alcohol testing ordered by the Court;
• His false testimony under oath concerning his alcohol use; and
• His failed PETH test in May 2022, following a court order that he abstain from consuming alcohol at any time, or for any reason.These findings are supported by evidence appellant has an alcohol use disorder, that during the pendency of the case he was ordered to participate in Soberlink Remote Alcohol Monitoring and then SCRAM, and he was non-compliant with those orders. Those orders were enacted for the safety and welfare of R.M.T. Terhall had concerns over the safety and welfare of R.M.T., which were supported by two substance abuse evaluations conducted in 2020 and 2021. In addition, the evidence established Father did not comply with Dr. Harvey's request for a PETH test and EtG urine alcohol test, and at trial Father admitted that he was not compliant with the court's order not to drink and that the trial the court has good reason to be concerned about his alcohol use. In addition, it can be inferred from Father's failure to comply with testing and monitoring orders, that the results would have been positive for alcohol use. See S.B. v. Tex. Dep't of Fam. & Protective Servs., No. 03-22-00476-CV, 2023 WL 402206, at *4 (Tex. App.-Austin Jan. 26, 2023, no pet.) (mem. op.). This evidence supports a determination that the SCRAM requirement was necessary to protect R.M.T.'s best interest. Accordingly, it was not an abuse of discretion to condition Father's access and possession on compliance with the SCRAM requirement. In addition, whether Father could meet the condition was entirely within his control and was subject to modification if he was compliant.
Next, Father urges that the court's removing him as a Joint Managing Conservator and limiting his possession and access to R.M.T. to 2 hours per week indefinitely, while also imposing an overly stringent SCRAM device requirement, infringed on his due process rights under the Fourteenth Amendment. Father failed to raise any due process complaint in the trial court. To preserve a complaint for appellate review, a party must present a timely request, motion or objection, state the specific grounds therefore, and obtain an adverse ruling. TEX. R. APP. P. 33.1(a)(1); In re B.E.S., No. 14-19-01009-CV, 2021 WL 3201354, at *2 (Tex. App.-Houston [14th Dist.] 2021, no pet.) (mem. op.); In re S.V., 599 S.W.3d 25, 40 (Tex. App.-Dallas 2017, pet. denied). Even constitutional complaints must be presented to the trial court to be preserved for appellate review. Perry v. United Servs. Auto Ass'n, 602 S.W.3d 915, 916 n.1 (Tex. 2020) (per curiam). Because there is no indication Father presented and received an adverse ruling on the constitutional complaint he now asserts on appeal, he failed to preserve it for appellate review. Tex.R.App.P. 33.1(a)(1); In re L.M.I., 119 S.W.3d 707, 710 (Tex. 2003); In re Baby Boy R., 191 S.W.3d 916, 921 (Tex. App.-Dallas 2006, pet. denied) (constitutional claims must be raised below or they are not preserved for appellate review).
Finally, under his first issue, Father asserts the imposition of the SCRAM requirement with GPS monitoring is an infringement on his Fourth Amendment right to privacy. First, we note that, while Father asserts all SCRAM devices manufactured by SCRAM Systems include a GPS monitoring component, he does not cite to any evidence in the record establishing same. Accordingly, Father has failed to establish a basis in the record for his right to privacy complaint. Moreover, Father did not raise this issue in the trial court. Therefore, it is not preserved for our review. TEX. R. APP. P. 33.1(a)(1); In re L.M.I., 119 S.W.3d at 710; In re Baby Boy R., 191 S.W.3d at 921.
III. Financial Obligations
In his second issue, Father asserts the trial court erred by imposing financial conditions for visitation that are excessive and beyond his ability to pay. First, we note the trial court did not condition visitation on the payment of child support. With respect to the SCRAM monitoring fees and the court-appointed supervisor's fees, there is no evidence in the record concerning the amount of same. Accordingly, there is nothing for this Court to review with respect to same. See TEX. R. APP. P. 38.1(g) (appellant's brief must state concisely and without argument the fact pertinent to the issues or points raised and be supported by record references).
Even construing his issue as generally challenging the award of child support, we review the trial court's award of child support for an abuse of discretion. Woford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The test by which that standard is applied is whether the trial court acted arbitrarily or unreasonably without reference to any guiding rules or principals. Id. Abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the decision. In re C.H.C., 392 S.W.3d at 349.
A child support order established in accordance with the child support guidelines of the Texas Family Code in effect at the time of the hearing is presumed to be reasonable, and an order conforming to the guidelines is presumed to be in the best interest of the child. FAM. § 154.122. However, a court order may deviate from the child support guidelines if these presumptions are rebutted by evidence. Id. § 154.123.
In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors. Id. Among the non-exclusive factors that the Family Code identifies as relevant are: (1) the age and needs of the child; (2) the parent's ability to contribute to the support of the child; (3) financial resources available for the child's support; (4) the amount of time of possession and access to a child; (5) the parent's net resources, including earning potential if the parent is intentionally unemployed or underemployed; (6) child care expenses incurred by either party in order to maintain gainful employment; (7) provision for health care insurance and payment of uninsured; and (8) the debt assumed by each parent. Id.
The trial judge found the application of the percentage guidelines in this case would be unjust and inappropriate. She further found Father's gross resources are $11,250 per month and his net resources are $8,500 per month, Mother's net resources are $5,033.21 per month, R.M.T.'s monthly expenses total at least $5,000, Mother provides and pays for R.M.T.'s health and dental insurance, Mother incurs childcare expenses in order to maintain gainful employment, and Father caused Mother to incur substantial debt for attorney's fees and costs with his campaign of abusive, groundless, baseless and frivolous motions through the case. Father does not challenge these findings, rather, he asserts evidence he has a negative net worth establishes an inability to pay. But child support determinations are based on monthly net resources, and debt assumed by a parent is only one consideration. See FAM. §§ 154.123; 154.125. In addition, unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).
Under the guidelines, Father's child support would be $1,700, 20% of $8,500. See FAM. § 154.125(b).
Section 154.064 of the Texas Family Code provides that the guidelines for support of a child are based on the assumption that the court will order the obligor to provide medical and dental support for the child in addition to the amount of child support calculated in accordance with those guidelines. FAM. § 154.064. Of course, here Father is benefitting from the fact that Mother is providing medical and dental insurance with a 50/50 split on uninsured expenses.
Father also references arrearages of $19,367, the attorney's fee award of $200,000, and sanction of $50,000, but he does not challenge the reasonableness or the amount of the awards; he only complains that he is unable to pay. Father cites no authority to support his assertion the trial court abused its discretion in making these awards.
While the evidence presented showed Father had a net worth of -$186,387.38 the record also established Mother had a net worth of -$156,803.14.
The record before us includes Father's payment statement from his employer RefineRE, Inc. indicating Father received income of $135,000 per year as well as bank statements for 2023 showing deposits ranging from $5,785.84 to $23,550.87, with the majority of the deposits totaling in the range of approximately $10,000 to $11,000. The record includes Mother's monthly expenses related to R.M.T. establishing expenses in excess of $5,000. The Final Decree of Divorce orders Mother to maintain health and dental insurance for R.M.T. Thus, the record before us supports the trial court's written findings and implied finding that Father had sufficient monthly income to meet the imposed child support obligation. Accordingly, the trial court did not abuse its discretion in ordering Father to pay child support in the amount of $2,500 per month. We overrule Father's second issue.
In his third issue, Father asserts the trial court violated his due process rights under the 14th Amendment by failing to enact fair and equitable financial orders. Father failed to raise any due process complaint in the trial court. To preserve a complaint for appellate review, a party must present a timely request, motion or objection, state the specific grounds therefore, and obtain an adverse ruling. TEX. R. APP. P. 33.1(a)(1); In re B.E.S., 2021 WL 3201354, at *2; In re S.V., 599 S.W.3d at 40. Even constitutional complaints must be presented to the trial court to be preserved for appellate review. Perry, 602 S.W.3d at 916 n.1. Because there is no indication Father presented and received an adverse ruling on the constitutional complaint he now asserts on appeal, he failed to preserve it for appellate review. TEX. R. APP. P. 33.1(a)(1); In re L.M.I., 119 S.W.3d at 710; In re Baby Boy R., 191 S.W.3d at 921.
Next, Father contends the financial obligations are punitive and do not accurately reflect his ability to pay. Again, he claims his child support obligations are outside the guidelines and his ability to pay. We have already determined the trial court did not abuse its discretion in making its child support obligation determination.
We overrule Father's third issue.
IV. Exclusion of Evidence
In his fourth issue, Father asserts the trial court's exclusion of evidence led to erroneous findings of fact and conclusions of law. More particularly, Father asserts that by adopting the findings and conclusions submitted by Mother, the court did not independently determine the facts that govern its judgment. Nothing in the record establishes the trial court did not itself make the findings and conclusions and, in fact, by signing the findings of fact and conclusions of law the trial court made those findings and conclusions its own.
We note that trial courts often ask the parties to prepare proposed findings of fact and conclusions of law. See, e.g., S-G Owners Ass'n, Inc. v. Sifuentes, 562 S.W.3d 614, 619 (Tex. App.-Houston [1st Dist.] 2018, no pet.); In re J.H., No. 02-16-00009-CV, 2016 WL 3162045, at *4 (Tex. App.-Fort Worth June 2, 2016, no pet.) (mem. op.). There is nothing untoward about doing so. Ultimately, the findings signed are the findings of the court and a complaining party can challenge the sufficiency of the evidence to support the findings.
Father does not identify any specific findings he contends are not supported by the evidence; instead, he asks this court to conduct a de novo review of the entire record to ensure the findings of fact and conclusions of law are supported by the evidence and determine whether the court exercised its judicial function in adopting findings and conclusions. We have no duty to perform an independent review of the record and applicable law to determine whether error occurred and Father has failed to establish error. Strange, 126 S.W.3d at 678.
Next, Father contends that the exclusion of key evidence has lead to erroneous findings of fact and conclusions of law. Father does not identity what that evidence is and does not specify which findings or conclusions he claims are erroneous. Accordingly, this unsupported argument presents nothing for this Court to review. Birnbaum, 120 S.W.3d at 477.
Next, Father contends the trial court abused its discretion in excluding Soberlink evidence and a hair test result. Father contends this evidence established his sobriety and compliance with the court's order requiring testing. Whether to admit or exclude evidence is a matter committed to the trial court's sound discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. In re Estate of Miller, 243 S.W.3d 831, 836 (Tex. App.-Dallas 2008, no pet.). The trial court's evidentiary ruling will be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex. 1985). Under an abuse of discretion review, an appellate court is not free to substitute its own judgment for the trial court's judgment. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
With respect to the Soberlink records Father attempted to introduce into evidence, totaling 39 pages, the trial court sustained Mother's hearsay objection. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay is not admissible unless a statute, the rules of evidence, or other rules prescribed under statutory authority provide otherwise. TEX. R. EVID. 802. Father does not argue or attempt to establish the trial court erred in its ruling and, thus, has waived any complaint regarding same. See Birnbaum, 120 S.W.3d at 477.
Nevertheless, had Father preserved his complaint, he cannot demonstrate the trial court abused its discretion in sustaining Mother's hearsay objection because the "Soberlink" documents were not accompanied by a business records affidavit. Thus, they were not admissible under Rule 803(6) of the Texas Rules of Evidence as a record of regularly conducted activity. See TEX. R. EVID. 803(6). After Mother objected to the documents, Father attempted to remedy the situation by offering an affidavit from a custodian of record of Soberlink Healthcare LLC purporting to prove up 57 pages of records of Soberlink. But that affidavit did not comply with the requirements of Rule 902(10) of the Texas Rules of Evidence, titled "Business Records Accompanied by Affidavit" and governing the authentication of business records, because no documents were attached to thereto. See TEX. R. EVID. 902(10). The record before us demonstrates Father did not establish an exception to the rule against hearsay applied to the Soberlink documents he attempted to introduce into evidence. Accordingly, the trial court did not abuse its discretion in excluding those documents.
Earlier in the case and at trial, there was a suggestion that Father and his attorneys had submitted documents that had not come from Soberlink, but rather were fabricated by Father to show compliance with the Soberlink order. This situation underscores the necessity for having a business records affidavit executed by a custodian of the records with the documents attached thereto to assure the authenticity of same.
In addition to sustaining Mother's hearsay objection to the Soberlink documents, the trial court sustained Mother's hearsay objection to a hair test result Father attempted to admit into evidence without a Rule 902(10) affidavit. In response to Mother's hearsay objection, Father did not present to the trial court a basis for the admission of the report as an exception to the hearsay rule. To complain on appeal about the trial court's exclusion of evidence, the proponent must have told the judge why the evidence was admissible. Matter of A.V., No. 11-16-00078-CV, 2017 WL 2484348, at *1 (Tex. App.-Eastland June 8, 2017, no pet.) (mem. op.). We conclude Father failed to assert and establish the hair test result was admissible under any exception to the hearsay rule. Thus, he has failed to preserve any complaint about the trial court's ruling regarding same on appeal. We overrule Father's fourth issue.
V. Child Custody Evaluation
In his fifth issue, Father asserts the child custody evaluator did not comply with the professional guidelines and legal standards applicable to child custody evaluations. Father did not raise this complaint in the trial court and, in addition, he does identify any specific guidelines he contends were not complied with on appeal. Accordingly, this assertion presents nothing for this Court to review on appeal. TEX. R. APP. P. 33.1; Birnbaum, 120 S.W.3d at 477.
Next, Father contends Terhall's reliance on the psychological evaluator's assessment compromised the reliability of her assessment because it was not based on current evidence. As an initial matter we note, the cases Father cites in connection with this argument concern petitions for modification of judgments where a showing of a material and substantial change in circumstances since the previous custody order is required. See, e.g., In re J.R.P., 526 S.W.3d 770, 779 (Tex. App.-Houston [14th Dist.] 2017, no pet.). This case does not reach this Court in that posture, and those cases are not controlling or instructive here. See id. at 777 (modification proceedings are governed by a statutory scheme distinct from the statutory scheme controlling original custody determinations); see also FAM. § 156.101(a).
Father stipulated to the admissibility of Dr. Harvey and Terhall's reports, and Dr. Harvey and Terhall testified at trial. Father had the opportunity to question the witnesses and explore the bases for their assessments, including whether subsequent events affected their assessments. Father cites no controlling authority establishing the time that lapsed from the date of the reports to the time of trial compromised the witnesses' opinions and testimony to an extent that they should be considered no evidence. Moreover, the record as a whole supports the child custody evaluator's assessments and recommendations and Father's absence from R.M.T.'s life for the fifteen months preceding the trial of this case actually caused Terhall to have additional concerns with respect to Father that she had not contemplated at the time of her report. Accordingly, we conclude Father's assertion the child custody evaluator's assessment is unreliable is unsupported and without merit. We overrule Father's fifth issue.
VI. SCRAM
In his sixth issue, Father urges the trial court's order requiring a SCRAM device was based on outdated information and was impossible to comply with resulting in an unjust denial of access to R.M.T. Again, Father cites to cases involving petitions to modify judgments based on material and substantial changes in circumstances and not cases that were resolved in the posture this case reaches us. Father asserts the necessity for SCRAM monitoring should be based on current evidence, not on conditions or recommendations that are outdated. As stated supra, Father has failed to show the conditions and recommendations of the evaluators were not applicable at the time of trial, and there is evidence supporting their conclusions.
Father contends the associate judge's July 2022 order for SCRAM is unenforceable due to its vagueness and lack of specific directives for implementation. First, we note, the referenced order is not in the record before us and, therefore, it cannot be reviewed. And, moreover, Father's complaint about that order is moot because the Final Decree of Divorce supersedes the associate judge's temporary order. See Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. App.-Dallas 1980, no writ).
Also, Father contends that any ambiguity in the trial court's order concerning custody, visitation and monitoring requirements should be addressed, but Father does not identify any ambiguity. Next, Father asserts it was impossible for him to comply with the order. More particularly, Father contends that when he attempted to comply with the associate judge's July 2022 order regarding a SCRAM device, he was turned away by the only SCRAM provider in Texas. Father does not direct this Court to any evidence of same. And, at trial, Terhall testified, "I spoke with [Recovery Monitoring Solutions] this morning, and they indicated that they would take cases that were court-ordered, even family law cases, as long as it was clear in the order who the results were to go to." Again, the record does not contain the July 2022 order, Father did not present any evidence that order did not meet the criteria set forth by RMS, and Terhall's admission that she did not know if the court order in this case met the criteria does not establish it did not. Additionally, the record establishes that while Father claimed he encountered obstacles to obtaining a SCRAM device and acknowledged this was a condition of his visitation, he did not bring his alleged inability to obtain same to the trial court's attention for over a year. With respect to the Final Decree of Divorce, it clearly sets forth who the results of the monitoring are to be sent to. Accordingly, Father has failed to support his ambiguity argument and has not established the impossibility of obtaining a SCRAM device.
The decree provides, "IT IS ORDERED that Recovery Monitoring Solutions shall notify the Petitioner through her counsel of record of any acts of non-compliance by the Respondent via e-mail to potoole@otoolefamilylaw.com."
We overrule Father's sixth issue.
VII. Fair Process
In his seventh issue, appellant assert's the trial court violated his due process rights by failing to ensure a fair trial process, including the presence of a "spy" and failure to swear in witnesses.
As the trial began, Mother's attorney noticed a person sitting in the back of the courtroom and asked the trial judge to inquire as to the identity of the person. The trial judge did so and the individual identified herself as Tamara Snell and indicated she had been doing criminal law and wanted to decide if she wanted to go into family law, so she was just observing. Before the second day of trial, it appears it became known that Snell was in the courtroom at the request of Father's girlfriend's ex-husband's lawyer. When Snell appeared on the second day of trial, Father called her as a witness. She testified under oath that she was attending the trial on behalf of the attorney representing Father's girlfriend's ex-husband to collect information about Father's minor child. The trial judge admonished Snell for not being forthcoming and for making the court and the parties believe she was just there to think about family law. Father recognizes that the court's response to the situation, including the admonishment of Snell, was appropriate to maintain the integrity of the proceedings. Father, nevertheless, claims the mere presence and intent of Snell to prejudice the case had an adverse effect on the trial's fairness implicating due process.
Father did not raise this due process complaint in the trial court and thus it has not been preserved on appeal. See In re L.M.I., 119 S.W.3d at 710; In re Baby Boy R., 191 S.W.3d at 921). Moreover, had Father preserved the complaint he fails to indicate how Snell's testimony prejudiced his case. The transcript of the trial reveals her testimony was a minuscule portion of the proceedings, totaling approximately three pages of the transcript, and that her testimony was irrelevant to this case. Accordingly, Father's prejudice argument is without merit. See, e.g., In re J.W., No. 05-23-01049-CV, 2024 WL 1340367, at *12 (Tex. App.-Dallas Mar. 29, 2024, no pet.) (mem. op.) (conclusory assertions are insufficient to demonstrate prejudice).
Next, Father argues that it was error for the trial court to permit mother's father to provide unsworn testimony. Father failed to object when the trial court did so. Accordingly, he failed to preserve error on this complaint. See TEX. R. APP. P. 33.1(a); Poff v. Guzman, 532 S.W.3d 867, 873 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (concluding appellant failed to preserve error regarding unsworn testimony).
Furthermore, Father's assertion on appeal fails to recognize that, at the conclusion of Mother's father's testimony and before Mother's mother testified, the trial judge swore in both Mother's father and mother. The trial judge then asked Mother's father, "is there anything that you would say differently, now that you're under oath, from your testimony a few minutes ago?" He responded, "No, absolutely not." The trial judge then gave Father the opportunity to ask Mother's father additional questions. He declined to do so. In addition to failing to preserve the issue of unsworn testimony for review, Father was given the opportunity to further examine the witness and chose not to do so. Thus, he cannot show he was harmed by the delay in the trial judge administering the oath to Mother's father.
We overrule Father's seventh issue.
CONCLUSION
We affirm the trial court's November 17, 2023 Final Decree of Divorce.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from appellant.