AFFIRM and Opinion Filed August 15, 2007
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for good cause, the sitting judge is to "make no further orders and-. -.- . take no further action in the
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___ren_~ers ~y_ ~~ns_tak~n _subsequent to_ the violation void. Brous_seu, 28 S.W.3d at 238. In support
of her argument that the trial court acted improperly, mother points to an exchange between counsel
and the trial court during the hearing on the motion for continuance. Mother attempted to raise the
issue of entitlement to a hearing on the motion to recuse after the presiding judge had ruled. In
response, the court stated: "[s]ir, I'm not addressing that. If you have issues with the motion to
recuse that goes with [the presiding judge]. Start on your motion for continuance, I have no
jurisdiction over those issues.'' This exchange demonstrates the opposite ofmother's contention. The
trial court properly refused to consider any issues pertaining to the recusal. The trial court took no
action between the time the motions were filed and the order of denial was entered by the presiding
judge. After the motions were denied, the trial court was once again empowered to act. Because the
court complied with the rule, there was no error. We resolve mother's fourth issue against her.
Failure to take Judicial Notice
In her sixth issue, mother assigns error to the trial court's refusal to take judicial notice of
domestic violence charges alleged to be pending against father. During trial, mother testified without
objection that a domestic violence case was pending against father. After mother's testimony,
counsel made an oral motion to the court requesting the court take judicial notice of the adjudicative
facts of the domestic violence case. The trial court refused.
Mother argues judicial notice is mandatory, citing our decision in Brown v. Brown, 145
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S.W.3d 745, 750 (Tex.App.-Dallas 2004, pet. denied). Mother's argument ignores the critical
distinction between Brown and this case. In Brown, we held a court may take judicial notice of the
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records of another court when it is provided with those records. Once a court has been provided with
the necessary information, such notice is mandatory. !d. Unlike Brown, the trial court was provided
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· with-no records; Moreover; mother's counsel was well aware of the need for the records; therewas- -- -- -- -
extensive discussion at one of the many pre-trial hearings about the necessity of obtaining the
records. It is axiomatic that when the court is provided with no record of the facts, there is nothing
for the court to judicially notice. We conclude the trial court did not abuse its discretion when it
refused mother's request for judicial notice.
Ignoring and Predetermining the Merits
In a sub-part of her sixth issue, mother asserts the trial court ignored and predetermined the
merits of other evidence of abuse. Mother's formulation of this issue consists of a multifarious litany
of alleged wrongs, including complaints about rulings on temporary orders and comments made
from the bench. We cannot consider this issue because it is multifarious and inadequately briefed.
See Green v. Kaposta, 152 S.W.3d 839 (Tex.App.-Dallas 2005, no pet.); TEX. R APP. P. 38.l(h).
('· Mother's sixth issue is overruled.
ChargeEffor
In her fifth issue, mother contends the trial court erred by refusing to instruct the jury: (a) that
there is a statutory presumption against custody when there is evidence of family violence; and (b)
that mother has a statutory duty to protect the child from abuse. Father argues any error was not
properly preserved for appeal and has therefore been waived.
''Rule 277 of the Texas Rules of Civil Procedure requires a trial court to submit 'such
instructions and definitions as shall be proper to enable the jury to render a verdict.'" State Farm
Lloyds v. Nicolau, 951 S.W.2d 444,451 (Tex.1997) (quoting TEX. R CIV. P. 277). An appellate
court reviews a trial court's decision to submit or refuse an instruction under an abuse of discretion
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standard. Shupe v. Lingafelter, 192 S. W.3d 577, 579 (Tex.2006). The trial court has broad discretion
( in submitting jury questions so long as the questions submitted fairly place the disputed issues
- - - -·- ·before the jury-:- Rosell- v. -Central-West- Motor-Stages;-Inc;; 89- S: W-:-3d-643-,653-f-Tex;-A:pp.-Dallas
2002, pet. denied). When submitting the jury charge, a trial court is afforded more discretion when
submitting instructions than when submitting questions. Id; Wal-Mart Stores, Inc. v. Middleton, 982
S.W.2d 468,470 {Tex.App.-SanAntonio 1998, pet. denied). To be proper, an instruction "must(1)
assist the jury; (2) accurately state the law; and (3) find support in the pleadings and the evidence."
Texas Worker's Camp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909,912 (Tex. 2000). Even if a trial
court abuses its discretion, we do not reverse unless the omission of the instruction probably caused
the rendition of an improper judgment. Shupe, 192 S.W.3d at 579.To determine whether an alleged
error in the charge is reversible error, we consider the pleadings of the parties, the evidence
presented at trial, and the charge in its entirety. American Title Co. v. BOMAC Mortgage Holdings,
L.P., 196 S.W.3d 903, 907 {Tex. App.-Dallas 2006, no pet.).
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Mother filed her requested charge in accordance with the court's pretrial order. Mother's
proposal requested the jury be instructed on certain provisions in TEx. FAM. CODE ANN.§ 261.001
(V emon 2006). The requested charge contained no authority for the submission ofthe issue in a case
of this nature. At the charge conference, mother elaborated on the request, seeking instructions that
sexual conduct harmful to a child's mental, emotional, or physical welfare is abuse, and that a parent
has a duty to make a reasonable effort to prevent sexual conduct harmful to a child. The trial court
declined the requested instructions, noting the Family Code provisions cited by mother pertain to
actions in which CPS is investigating allegations of abuse, and are not among the rights, powers, and
duties pertaining to parents in a custody dispute. Mother's counsel objected, but other than asserting
the instruction should be included, failed to specify how the omission of the instruction was error.
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Consequently, this general objection did not preserve the alleged error for appeal. See TEX. R. Crv.
P. 274; TEX. R.APP. P. 33.l(a)(l)(A); Castleberryv. Branscum, 721 S.W.2d 270,276 (Tex. 1986).
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Even if the complaint had been· preserved, mother cites to no authority; nor are we aware· of any,
requiring a fact-finder in a custody dispute to consider the factors enumerated in TEX. FAM. CODE
ANN.§ 261.001. Mother also fails to demonstrate how the failure to include such an instruction led
to the rendition of an improper judgment.
The second omitted instruction about which mother complains was requested after the charge
conference, but before the charge was read to the jury. Mother requested the court instruct the jury
that under TEX. FAM. CODE ANN.§ 153.04 (Vernon 2006), there is a statutory presumption against
custody when there is a history of family violence. When mother requested this instruction, the court
noted the charge conference had concluded the preceding day. Nonetheless, the court allowed
counsel to make a bill of exception. Mother did so by making a general oral objection to the court's
refusal to include the newly requested instruction. Mother only complained about the failure to
include the instruction; she did not explain to the trial court why the exclusion might constitute error.
The court denied the request. The requested instruction was not included in the proposed instructions
initially tendered to the court, nor was the instruction tendered in writing when the bill of exception
was made. When the court omits an instruction or definition, a party must make a request in writing.
TEx. R. Crv. P. 274; TEx. R. Crv. P. 278; Gerdes v. Kennamer, 155 S.W.3d 523, 534
(Tex.App.-Corpus Christi 2004, pet. denied). Thus, any error was not preserved for our review.
Even had the issue been preserved, we cannot conclude the omission was reversible error.
After hearing all of the evidence, the trial court found there was not a pattern of family violence. The
jury heard evidence concerning family violence. They were informed criminal charges were pending
against father based on mother's allegation of family violence. This evidence was introduced in a
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videotape made by mother and played for the jury. There was also evidence concerning mother's
family violence in the form of a protective order entered against mother by her own mother. Thus,
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determination. Any error was harmless. Mother's fifth issue is overruled.
Best Interest o(the Child
In her seventh issue, mother argues the court erred because it failed to consider the best
interest of the child. In support ofher argument, mother argues because there was an alleged lack
of advocacy for the chil~, "it is unlikely the Holley factors were adequately considered or
investigated" See Holley v. Adams, 544 S.W.2d 367,372 (Tex. 1976). Mother further asserts there
is no indication the trial court considered the desires of the child "as required by Holley". We
disagree with mother's interpretation ofboth Holley and the record.
The best interest of the child shall always be the primary consideration of the court in
determining questions of managing conservatorship, possession, and support of and access to a
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( child. TEX. FAM.CODE ANN.§ 153.002 (Vernon 1996). Trial courts have wide discretion in
determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650
(Tex.App. -Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best
interest of the child with regard to child support and visitation, specifically the establishment of
terms and conditions of the conservatorship, is a discretionary function of the trial court and will
only be reversed upon a determination that the trial court has abused its discretion. MacCallum v.
MacCallum, 801 S. W.2d 579, 582 {Tex.App-Corpus Christi 1990, writ denied). This is because the
trial court is in the best position to observe the demeanor and personalities of the witnesses and can
feel forces, powers, and influences that cannot be discerned by merely reading the record. In the
Interest of T, 715 S.W.2d 416, 418 (Tex.App.-Dallas 1986, no writ). The test for abuse of
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discretion is whether the trial court acted without reference to any guiding rules or principles; m
other words, whether the act was arbitrary or unreasonable. Warford v. Stamper, 801 S.W.2d 108,
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109 (Tex.1990).
Holley provides a list ofnon-exclusive factors the court may consider. See Holley, at 371-72;
In re J.A., 109 S. W .3d 869, 876-77 (Tex.App.-Dallas 2003, pet. denied). Proof ofbest interest is not
limited to these specific factors, nor do all factors always apply in every case. In re C.H., 89 S.W.3d
17, 27 (Tex. 2002). The focus is on the best interest of the child, not the best interest of the parent.
Dupree v. Tex. Dep 't of Protective Servs., 907 S.W.2d 81, 86 (Tex.App.-Dallas 1995, no writ).
There was no indication the child was sufficiently mature to express a parental preference, and the
co~ was not required to consider the wishes of the child. The court's finding that mother
manipulated the child's statements and influenced the child to tum against the father is also
significant. In light of this manipulatio~ it is questionable whether any expression of preference by
the child would truly evidence the child's desires.
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( Mother also contends the trial court's limitations on her access to the child do not comport
· with the recommendations of the experts. We disagree. Although the experts stated regular contact
with mother was in the best interest of the child, these statements were qualified. Dr.Zervopoulas
indicated mother should have more access to the child as long as her interaction does not begin to
generate the type of difficulties he previously observed. Dr. Zervopoulas also opined mother's
access to the child should be supervised. Moreover, regular contact does not necessarily equate to
managing conservatorship. Dr. Zervopoulas had parent-child sessions with both parents. He
observed comfortable and affectionate interaction between father and the child. The child complied
with the father's instructions and boundaries. Mother's interaction with the child was completely
different. The child ran up and down the halls of the office, and mother could not control her. The
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child refused to enter the room, threw a tantrum, and began hitting mother. Mother's attempts at
instruction went unheeded. Dr. Zervopoulas concluded mother's emotional issues get in the way of
( the parenting the child requires, and mother is unable to set limits for the child. Zervopoulas
recommended the child live with father because his lifestyle, and sense of structure and
appropriateness would be better for the child. Gail Inman, the child's court-appointed counselor
concurred with Dr. Zervopoulas. Inman opined, based on numerous observations, the child functions
better behaviorally when she is with her father and grandparents. During supervised visitation,
mother admitted to the counselor she kept late and erratic hours, and the child maintained the same
schedule when she was with her. Mother also admitted she had difficulty controlling the child. We
conclude the trial court did not abuse its discretion in determining the best interest of the child.
Mother's seventh issue is overruled.
Having resolved all of mother's issues against her, we affirm the judgment of the trial court.
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JUSTICE
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