TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
Patricia Ann Hastings, Appellee
NO. 99-12302, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
BACKGROUND
Upon filing her petition for divorce on October 21, 1999, Mrs. Hastings requested and received a temporary restraining order giving her possession of the family's house in Austin ("the house") and the children, two boys born in 1985 and 1987; the orders governing the parties evolved during the course of the case. The court signed agreed temporary orders and an agreed protective order on November 3, 1999. In the temporary orders, the court essentially ordered the parties to be civil. The court forbade the parties to interfere with the use of the real estate temporarily apportioned to the respective parties--the house in Austin for Mrs. Hastings and the boys, and a five-acre ranch near Wimberley for Mr. Hastings. The order also forbade affecting in any manner cable service to the Austin house. The order allowed Mrs. Hastings to determine the boys' primary residence, established the parents as joint managing conservators, and established a child support payment ($270.57 per month) and visitation schedule for Mr. Hastings, with the exchange of possession to occur at Barton Creek Mall. In the agreed protective order, the court forbade Mr. Hastings from removing the boys from Mrs. Hastings at any place, communicating with Mrs. Hastings or the boys in a harassing or threatening way, and communicating with them in any way, absent good cause. The court allowed Mr. Hastings to retrieve listed personal property from the house. In a hearing November 17, 1999, the associate judge recommended eliminating the prohibition on Mr. Hastings communicating directly with the boys; the order adopting the recommendation was signed December 22, 1999. (1) In that order, the court also moved the exchange point to Kids Exchange. By an order dated January 20, 2000, Mr. Hastings was again prohibited from communicating directly with the boys.
The order reinstating the ban on communications by Mr. Hastings to the boys followed an incident that led to Mr. Hastings's arrest. Officers from the federal Bureau of Alcohol Tobacco and Firearms searched the premises of the ranch. During this search, Mr. Hastings allegedly threatened the officers' lives; he was arrested and jailed on January 14, 2000. On May 12, 2000, he was found guilty of retaliation and given a sentence probated for ten years.
The court heard motions and conducted a non-jury trial on the merits in the divorce and termination suit on May 30 and 31, 2000. The district court found Mr. Hastings in contempt of the agreed protective order and the agreed temporary orders. The court found he violated the orders by writing and telephoning Mrs. Hastings and the boys, changing the address of utility bills, and failing to exercise the supervised possession; the court warned Mr. Hastings against further violations but did not assess punishment. (2) The district court granted the divorce and terminated Mr. Hastings's parental rights. The court granted an unequal distribution of the property based on a finding of fault for the breakup against Mr. Hastings and a consideration of Mrs. Hastings's needs for the support of the boys. The court declared that each had an undivided one-half separate property interest in the house.
The court's award of community property to Mrs. Hastings included all clothing, jewelry, other personal property, money, funds in accounts in her name in financial institutions, her retirement plan, her 1997 Isuzu Rodeo, and the ranch. The court held Mrs. Hastings solely responsible for the payments on her vehicle and credit cards in her name (approximately $10,000).
The court's award of community property to Mr. Hastings included all his clothing, jewelry, personal property, money, funds in accounts in his name in financial institutions and his retirement plan, as well as the travel trailer at the ranch, his 1994 Mazda pickup, and his 1981 Suzuki motorcycle. The court held Mr. Hastings solely liable for debts in his name (which he claimed included $7,000 for improvements to the ranch). The court also ordered Mr. Hastings to pay $5,000 of Mrs. Hastings's attorney's fees (which she claimed totaled $12,690) and $230.57 in back child support; the court did not order him to pay amounts accrued during his incarceration.
DISCUSSION
Mr. Hastings appeals, raising several procedural and substantive complaints. In his amended brief, he has consolidated these into seven issues and points of error.
By his first point, Mr. Hastings complains that he was denied effective counsel and that the court's forcing him to continue with retained counsel denied him his right to proceed pro se. Mr. Hastings did not preserve his complaint about not being allowed to proceed pro se. Before trial, he asked for court-appointed counsel to replace his attorney, but did not ask to proceed pro se. Because his issue on appeal does not match his request at trial, he waived the assigned error. See Tex. R. App. P. 33.1(a)(1)(A). The requirement that defendants receive effective assistance of counsel in criminal cases does not extend to civil cases--not even to cases with the heightened burdens of proof and fundamental issues involved in the termination of parental rights. Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 735 (Tex. App.--Dallas 1986, writ ref'd n.r.e.), cert. denied, 481 U.S. 1018 (1987); see also Walton v. City of Midland, 24 S.W.3d 853, 862 (Tex. App.--El Paso 2000, no pet.); Krasniqi v. Dallas County Child Prot. Servs. Unit, 809 S.W.2d 927, 932 (Tex. App.--Dallas 1991, writ denied). We overrule point one.
By his second point, Mr. Hastings complains that the district court erred by denying his motion for continuance when his attorney of record, Jamie Balagia, did not appear at trial. We will not disturb the district court's denial of a continuance unless the record discloses a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). In particular, the absence of counsel is "not good cause for a continuance or postponement of the cause when called for trial, except it will be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record." Tex. R. Civ. P. 253. Under the plain language of the rule, Balagia's absence was not good cause for a continuance. The attorney who appeared at trial, Bristol Myers, is a member of Balagia's law firm. Myers represented Mr. Hastings at his previous criminal trial; Mr. Hastings blamed his conviction at that trial on the quality of Myers's representation. The clerk's record contains signatures from both Balagia and Myers as attorney for Mr. Hastings; they sometimes signed over the other's printed name. The record does not contain a copy of the agreement hiring Balagia, but such agreements often contemplate that members of the same firm may appear in each other's stead. Myers's appearance in Balagia's stead did not require the court to grant the continuance. We note that Mr. Hastings has not shown that the denial of the continuance prevented him from presenting any evidence that would have changed the result of the trial; though he complains that he wanted to present evidence of his wife's physical abuse of him, the reporter's record contains his testimony about an assault upon him by Mrs. Hastings, which he claimed resulted in her breaking his jaw. The district court did not abuse its discretion by failing to find good cause to issue a continuance. We overrule point two.
By point three, Mr. Hastings complains of the "transfer of venue" of the case from Judge Deborah Richardson of the 345th District Court to Judge Suzanne Covington of the 201st District Court. (We note that Judge Richardson is not a district judge, but an associate judge who makes recommendations to a district court. See Tex. Fam. Code Ann. § 201.007 (West Supp. 2001)). Mr. Hastings's reliance on Rule of Civil Procedure 255 to challenge the "transfer" of this case between the 345th District and the 201st District is unavailing. Rule 255, allowing consensual transfers of venue between different counties, does not apply to district courts within the same county. District judges from the same county may sign an order or judgment in any district court in the same county regardless of whether the case is transferred; the judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter. Tex. Gov't Code Ann. § 74.094 (West Supp. 2001). Judge Covington presided over the case while sitting in the 345th District. All the judges and districts involved are within Travis County, and all the judges signed as the 345th District Court. We overrule point three.
By point four, Mr. Hastings contends that the district court terminated his parental rights without any evidence that he is or was a bad father or unfaithful husband. Mrs. Hastings sought termination and her request was granted on grounds that Mr. Hastings engaged in conduct that endangered the physical or emotional well-being of the boys and that termination was in the boys' best interest. See Tex. Fam. Code Ann. § 161.001. On appeal, we must determine whether clear and convincing evidence supports the ground for termination and the decision that termination is in the boys' best interest. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. See Tex. Fam. Code Ann. § 101.007 (West 1996); Leal v. Texas Dep't of Prot. & Regulatory Servs., 25 S.W.3d 315, 319 (Tex. App.--Austin 2000, no pet.). Clear and convincing evidence is an intermediate standard of proof falling between preponderance of the evidence and proof beyond a reasonable doubt. See id. The heightened standard of proof required in the trial court does not alter, but is incorporated into, our standard of review. Id. at 320.
We will speak first to the finding that Mr. Hastings engaged in conduct that endangered the physical or emotional well-being of the boys. In termination proceedings, the term "endanger" means "to expose to loss or injury; to jeopardize." Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The court rejected a requirement of "actual and concrete threat of injury to the child's emotional or physical well-being." Id. It is not necessary that conduct be directed at the child or for the child to actually suffer injury for "endangerment" to occur. Id.
While evidence of "endangerment" in this case is not abundant, it is sufficiently present. There was evidence that the boys were extremely fearful of Mr. Hastings's unpredictability and capacity for violence. The boys told their psychologist that their father often spanked them, usually on the buttocks and legs. The boys told their guardian ad litem that Mr. Hastings spanked them with a belt; Mr. Hastings would order them to lift their arms so that he could strike them under their armpits and across their backs. Mrs. Hastings testified that these episodes generally left visible marks on the boys. Mrs. Hastings testified that once when she tried to stop him from whipping the boys with a belt, Mr. Hastings pushed her repeatedly and knocked her down in front of them; the psychologist testified that the boys recounted that incident as justification of their fear of their father. Mrs. Hastings provided testimony about Mr. Hastings's drinking habits; she indicated that he drank daily, usually to the point of being visibly intoxicated. On those occasions when punishment was meted out to the boys, Mrs. Hastings indicated that the force used by Mr. Hastings was much more severe when he was intoxicated.
Mrs. Hastings testified that Mr. Hastings could be very verbally abusive. Evidence was presented which indicated that Mr. Hastings spoke very harshly to the boys, when he spoke at all. The psychologist and the guardian ad litem related an incident in which the boys felt that Mr. Hastings made the younger boy perform a chore that was extremely dangerous. Mr. Hastings ordered the boy onto the roof of the house to complete a repair. The boy became extremely fearful because of the presence of rotten wood and a slippery surface. When the boy became anxious and began to cry, Mr. Hastings yelled at the boy to finish the job and threatened him with a whipping if he didn't complete the task. The combination of factors, i.e., the conditions of the roof, the boy's fear, and the intimidation by Mr. Hastings, created a dangerous situation that easily could have resulted in serious harm to the boy.
Other testimony indicated that the children faced the threat of endangerment and that the existing relationship between Mr. Hastings and his children was not a proper one. Witnesses, including the guardian ad litem, expressed concern about Mr. Hastings's "preoccupation" with guns and his emotional stability. He owned ten to fifteen firearms when living at the house, keeping some of them in hollow places in the walls of the house. He told the guardian ad litem that he planned to kill himself within two years if he was not allowed to have access to his guns; the felony conviction means that Mr. Hastings will not be allowed to legally possess firearms. It is a concern that Mr. Hastings was diagnosed with depression, but chose not to take the prescribed medications because they "took the passion out of life." (3) Mr. Hastings withdrew from the family approximately a year before the divorce began, living in a separate bedroom, locking the door, and all but eliminating interaction with the family. Mr. Hastings also testified about having visions of manifestations of evil in the house.
For the finding of the trial court to be upheld, the evidence must also support the requirement that termination be in the best interest of the children. The supreme court has developed a list of factors that may be considered in determining whether termination is appropriate. Holley v. Adams, 544 S.W.2d, 367, 372 (Tex.1976). Several of the factors are relevant in this case: (A) the desires of the child; (B) the emotional and physical danger to the child now and in the future; and (C) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one. Id.
The wishes of the boys were strongly expressed in a letter from the boys to their father. In the letter, the boys indicate that they are "terrified" of their father because of the "mean" things he has done to them and to their mom, and that their wish is to have no further contact with him. The boys feared that serious violence by Mr. Hastings against either them or their mother was inevitable. It is worth noting that Mr. Hastings repeatedly offered before and during trial to terminate his parental rights voluntarily in exchange for certain monetary and property division guarantees. His repeatedly expressed demand was that he have no child support obligation; when told that the termination would achieve that goal, he offered to sign a voluntary termination. The court, however, proceeded to trial without obtaining the signature because of the continued efforts by Mr. Hastings to obtain property concessions before signing.
Mr. Hastings criticized these witnesses' concerns as unfounded or overstated. He testified that he did not verbally abuse the boys and that he had not used corporal punishment for two years before the trial. The guardian admitted he had never seen Mr. Hastings use corporal punishment on the boys, and neither the guardian nor the boys' therapist saw any abuse-related injuries on the boys. The therapist described the discipline as severe, but nonetheless not physical abuse. Mr. Hastings testified that his chore details were reasonable and designed to teach the boys responsibility. Calling the Bureau of Alcohol, Tobacco, and Firearms his political enemy, Mr. Hastings expressed a strong belief in his right to own guns. He insisted he was a threat to no one but himself. The guardian conceded that Mr. Hastings had not in his hearing made any explicit threats to anyone.
We conclude that the trial court could have found by clear and convincing evidence that Mr. Hastings engaged in conduct that endangered the physical or emotional well-being of the boys. We also find that termination effectuated Mr. Hastings's wishes expressed in court and the boys' wishes expressed in evidence. Because termination was in the boys' best interest, we conclude that the court did not err by terminating Mr. Hastings's parental rights to the boys. We overrule point four.
Mr. Hastings contends by point five that the district court erred by finding him in contempt of the protective order. "Appellate courts do not have jurisdiction to review contempt proceedings on direct appeal." In re Rich, 993 S.W.2d 272, 274 (Tex. App.--San Antonio 1999, orig. proceeding). We dismiss point five. See id.
By point of error six, Mr. Hastings challenges the unequal property division. The court must divide the parties' estate "in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 1998). The trial judge has wide discretion in dividing the parties' community estate, and we should not alter that division on appeal except to correct a clear abuse of discretion. See Murff v. Murff, 615 S.W.2d 696, 698-700 (Tex. 1981); Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex. App.--Austin 1999, no pet.). The property division need not be equal as long as it is equitable and the circumstances justify a disproportionate division. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.--El Paso 1998, pet. denied); Thomas v. Thomas, 525 S.W.2d 200, 202 (Tex. Civ. App.--Houston [1st Dist.] 1975, no writ). Factors the district court may consider in dividing the estate include, but are not limited to, the following: a disparity of incomes or of earning capacities, the spouses' capacities and abilities, benefits that the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 699; Kimsey, 965 S.W.2d at 704. We defer to the district court's determination of the credibility of the witnesses' testimony, and can only disturb the trial court's findings in a case of clear abuse of discretion. See Ford v. Panhandle & Santa Fe Ry. Co., 252 S.W.2d 561, 563 (Tex. 1952); Murff, 615 S.W.2d at 700.
Mr. Hastings has not shown that the district court clearly abused its discretion in ordering an unequal division because Mrs. Hastings alone bears financial responsibility for their sons. Though Mr. Hastings spoke of wanting to accumulate money to give to the boys, he did not pay the amounts of child support ordered even before his incarceration. (4) He repeatedly showed disdain for child-support obligations, writing "extortion" in the memo line of one check and at trial terming the obligation to pay $270 monthly (roughly $4.50 per boy per day) for the support of two teenage sons "slavery." Even if he does set aside money for the boys, there is no guarantee of how much he will give them or when he will bestow it. In the meantime, Mrs. Hastings must provide the boys food, clothing, shelter, and other items as the needs arise.
The disparity in the property division--chiefly, the award of the ranch solely to Mrs. Hastings--appears suited to addressing the disparity in the Hastingses' obligations. The parties' earning capacities appear similar. Both parties have college degrees. Mrs. Hastings is a teacher; Mr. Hastings has a psychology degree and teacher certification. Their interests in the ownership of the house are equal. They each got a vehicle, and Mr. Hastings additionally got a motorcycle. They each got their personal property. They each had credit-card debt. There was evidence that Mr. Hastings had incurred debt and provided labor for improvements on the house and ranch, but there was also evidence that Mrs. Hastings consistently earned income for the family, while Mr. Hastings's income was less steady. Though the ranch was community property, (5) the court awarded it entirely to Mrs. Hastings. Mr. Hastings valued the ranch at roughly $11,600. Using the temporary order of child support as a benchmark, the support of each boy is about $135 per month per parent. There are just over thirty-nine and fifty-nine months between the date of the divorce decree and the boys' respective eighteenth birthdays. Using these measures, the total increased financial burden that Mrs. Hastings will bear in supporting the boys is $13,230. (6) Thus, the value of the ranch actually fails to fully compensate Mrs. Hastings for the increased share of the financial burden. Mr. Hastings has not shown that this allocation of property is a clear abuse of discretion. We overrule point six.
By point of error seven, Mr. Hastings contends that he did not receive a fair and equitable divorce because he was "injured by a sexual[ly] biased judge, who failed to recognize appellee's untruthfulness and insufficient evidence even when appellee witnesses contradicted themselves." Mr. Hastings also reiterates some of his earlier arguments, essentially arguing for cumulative error. Our examination of the record does not reveal a gender bias in the decree. Mr. Hastings complains about the orders issued October 21 (e.g., that they were based on an unsubstantiated affidavit); these complaints are moot because the temporary orders were superseded by subsequent temporary orders and expressly terminated by the final decree. His complaints about the credibility of witnesses also fail. In a bench trial the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony, and may believe or disbelieve part or all of any witness testimony. Lahar v. Lahar, 803 S.W.2d 468, 469 (Tex. App.--Beaumont 1991, no writ); see Bocquet v. Herring, 972 S.W.2d 19, 22 (Tex. 1998); see also Vandyke v. Austin Indep. Sch. Dist., 547 S.W.2d 354, 355-56 (Tex. Civ. App.--Austin 1977, no writ). As discussed above, the final decree is sufficiently supported by the record. We find no specified or cumulative error and overrule point seven.
Mr. Hastings's original brief contained some complaints not stated in the issues/points of error in his amended brief. He complained that the district court erred by not conducting a jury trial because he never waived his right to a jury. Texas Family Code section 6.703 allows parties to demand a jury. But parties who want a jury trial must affirmatively request it. Tex. R. Civ. P. 216(a). Mr. Hastings points to no request in the record, nor do we find one. Mr. Hastings complains that the district court erred by failing to allow him to sign a property division that would have given Mrs. Hastings the house and allowed him to retain the ranch. There is no evidence in the record that Mrs. Hastings consented to such a division. Mr. Hastings's unilateral consent would not have been binding on Mrs. Hastings or the court. We find no error requiring that the divorce decree be altered.
Mr. Hastings contends by a second amended brief that the district court erred by issuing a protective order on February 15, 2001. We cannot consider the merits of this complaint because we conclude that stand-alone protective orders are not subject to challenge by direct appeal. See Normand v. Fox, 940 S.W.2d 401, 404 (Tex. App.--Waco 1997, no writ) (holding that order is unappealable, interlocutory order because trial court retains jurisdiction to modify it); but see James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App.--San Antonio 1998, no pet.) (holding that order is final and appealable because it is a permanent injunction that disposes of all parties and issues). We dismiss the issues raised by Mr. Hastings's second amended brief.
CONCLUSION
Having overruled or dismissed Mr. Hastings's asserted errors, we affirm the judgment of the district court
David Puryear, Justice
Before Justices Kidd, B. A. Smith, and Puryear
Affirmed
Filed: May 17, 2001
Do Not Publish
1. The relaxation of the restrictions was effective when recommended by the associate judge
on November 17, 1999. Associate judges make recommendations to the district court regarding
orders the court should make. See Tex. Fam. Code Ann. § 201.007 (West Supp. 2001).
Associate judges must make a written report to the district court including those recommendations;
the recommendations can take the form of a notation on the docket sheet, and the associate judge
may give the parties notice of the substance of the report orally in open court. Id. § 201.011(a).
Except for the recommendation to appoint a receiver, all recommendations of the associate judge
are in full force pending the appeal of the associate judge's report. Id. § 201.013(a). The December
22 order states that the associate judge on November 17, 1999 announced in open court and/or noted
on the docket sheet the recommendation that Mr. Hastings be allowed to have direct, non-threatening
communication with the boys. (The reporter's record of the November 17 hearing is not part of the
appellate record.) The recommendation thus was effective on November 17, 1999.
2. 3. 4. 5. All property possessed by either spouse during or on the dissolution of marriage is presumed
to be community property. See Tex. Fam. Code Ann. § 3.003 (West 1998). To overcome the
presumption, a party must present clear and convincing evidence that the property is separate. See
Tex. Fam. Code Ann. § 3.003 (West 1998). This evidence must generally trace and clearly identify
the property as separate. See Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.--San Antonio 1998,
no pet.) (citing McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.1973)). A party may not
overcome the presumption merely by showing that separate property was used to pay all or some of
the installments on a note for property acquired during marriage; the payments create a right to
reimbursement for the spouse, but not a separate property interest. See Broussard v. Tian, 295
S.W.2d 405, 406 (Tex. 1956).
Mr. Hastings concedes that Mrs. Hastings made some payments on the ranch. His claims that
he paid for the property with proceeds from the sale of his separate property were undercut somewhat
by his admission that he sold that property three years after obtaining a contract to buy the ranch.
He did not provide specific evidence of the amounts paid from his separate accounts.
6. Calculating the obligation from trial through the boys' eighteenth birthdays, the calculation
is as follows: $135/month X (39 + 59) months = $13,230. This calculation ignores inflation,
potential increased needs, and any obligations to support children through high school graduation,
much less college.
Having overruled or dismissed Mr. Hastings's asserted errors, we affirm the judgment of the district court
David Puryear, Justice
Before Justices Kidd, B. A. Smith, and Puryear
Affirmed
F