Opinion
No. 05-10-00687-CV
Opinion issued July 20, 2011.
On Appeal from the 330th Judicial District Court Dallas County, Texas, Trial Court Cause No. DF-08-03536-Y.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
Appellant Mario Vega appeals from an order modifying the parent-child relationship. He challenges the sufficiency of the evidence to support that order and the sufficiency of the affidavit supporting the petitioner's petition to modify parent-child relationship. We affirm.
I. Background
Vega and his wife, appellee Elizabeth Benitez, were divorced in October 2008. They had one child, L.V. The divorce decree established Vega and Benitez as joint managing conservators of L.V. The decree gave Vega the right to designate L.V.'s primary residence.
In February 2009, Benitez filed a petition to modify parent-child relationship with a supporting affidavit attached. She sought to be designated as the person with the right to designate L.V.'s primary residence. Vega filed an answer and counterpetition. In February 2010, the district judge held a bench trial. In April 2010, the judge signed an order in which she granted the modification requested by Benitez and gave Benitez the right to designate L.V.'s primary residence. Vega appealed.
In her appellee's brief, Benitez argues that this appeal is frivolous, and she seeks an award of attorney's fees.
II. Analysis
Vega raises one issue on appeal. In his issue as stated, he asserts that the evidence is insufficient to support the finding of a material change of circumstances after the rendition of the divorce decree. In the argument section of his brief, he also attacks the sufficiency of the affidavit in support of Benitez's petition to modify parent-child relationship. We will address both arguments.
A. Sufficiency of supporting affidavit
If a person files a suit to modify the designation of the person having the exclusive right to designate the primary residence of the child within one year of the order to be modified, the petitioner shall execute and attach an affidavit containing at least one of three specified allegations, along with supporting facts. Tex. Fam. Code Ann. § 156.102(a)-(b) (West Supp. 2010). If the affidavit is insufficient, the trial judge shall deny the relief sought and refuse to schedule a hearing for modification. Id. § 156.102(c). Vega argues that Benitez's affidavit did not meet any of the three criteria listed in § 156.102(b), and thus that the trial judge erred by granting relief.
We conclude that Vega did not preserve error in the trial court. To preserve error, Vega had to make a timely request, objection, or motion in the trial court. See Tex. R. Civ. P. 33.1(a). Vega does not refer us to any request, objection, or motion challenging the sufficiency of Benitez's affidavit, and we have found none in our review of the record. The Austin Court of Appeals has held specifically that a complaint about the adequacy of a § 156.102 affidavit is waived unless the complaint is made in the trial court before the judgment is signed. Serafin v. Seale, No. 03-09-00516-CV, 2010 WL 4910047, at *2 (Tex. App.-Austin Dec. 2, 2010, no pet.) (mem. op.). But cf. Graves v. Graves, 916 S.W.2d 65, 68-69 n. 3 (Tex. App.-Houston [1st Dist.] 1996, no writ) (permitting defendant to challenge affidavit for the first time on appeal because she was served by publication and did not personally appear at hearing). We conclude that Vega waived any defect in Benitez's § 156.102 affidavit by failing to object in the trial court.
B. Sufficiency of the evidence
Vega's other argument is that the evidence is insufficient to support a finding that there had been a material change of circumstances after the rendition of the divorce decree establishing L.V.'s custody arrangement. We reject the argument because we have no reporter's record from the hearing in this matter. After the appeal was perfected and the deadline for filing the reporter's record had passed, we ordered the court reporter to file either the reporter's record or a written verification that no hearings were recorded or that Vega had not requested or paid for the record. In our order, we notified Vega that if we received verification of nonpayment, we would order the appeal submitted without the reporter's record pursuant to Texas Rule of Appellate Procedure 37.3(c). The court reporter submitted a written verification to us that Vega had not made payment arrangements in this case. Vega took no further action to procure the reporter's record, so we have submitted the appeal without a reporter's record. We cannot review the sufficiency of the evidence without a reporter's record. In re J.C., 250 S.W.3d 486, 489 (Tex. App.-Fort Worth 2008, pet. denied); see also In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.-Dallas 2006, no pet.) (holding that missing portions of reporter's record were presumed to support the judgment).
When Vega perfected this appeal, he submitted a docketing statement that included a space in which he was to "[s]tate arrangements made for payment of court reporter/recorder." Vega left that space blank.
We resolve Vega's sole issue on appeal against him.
III. Sanctions
Benitez asks us to find Vega's appeal frivolous and to order him to pay her attorney's fees. We are authorized to award damages for a frivolous appeal in a civil case. See Tex. R. App. P. 45. An appeal is frivolous if there were no reasonable grounds at the time it was brought to believe the judgment would be reversed, or if it is pursued in bad faith. Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.-Dallas 2007, no pet.). We award sanctions only under egregious circumstances. D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205 (Tex. App.-Dallas 2011, no pet.); see also Talkington v. McCurley, No. 05-08-01166-CV, 2009 WL 3823392, at *1-2 (Tex. App.-Dallas Nov. 17, 2009, no pet.) (mem. op.) (denying request for sanctions even though appellant waived appeal by failing to challenge all possible grounds for summary judgment); In re A.W.P., 200 S.W.3d at 245-46 (denying motion for sanctions even after disposing of appeal primarily based on the failure to present a complete record). After reviewing the briefs and the record, we deny Benitez's request.
IV. Conclusion
We affirm the trial court's order modifying the parent-child relationship.