Opinion issued August 27, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00504-CV
———————————
SANDRA PEREZ, Appellant
V.
BRIAN WILLIAMS, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2013-05419
OPINION
Appellant, Sandra Perez, alleged that she had a common-law, or informal,
marriage with appellee, Brian Williams. Perez and Williams also have a minor
child, E.A.W., over whom both parents sought custody. The trial court ruled, via
Williams’s motion for summary judgment, that no informal marriage existed.
Following a bench trial, the trial court named Perez and Williams joint managing
conservators of E.A.W. and granted Williams the exclusive right to designate
E.A.W.’s primary residence.
In seven issues, Perez argues that the trial court erred: (1) in granting
Williams’s motion for summary judgment determining that no informal marriage
existed; (2) in denying her mid-trial motion to substitute legal counsel; (3) in
refusing to take judicial notice of copies of court documents filed in judicial
proceedings related to Williams’s custody dispute over his three children from a
previous relationship; (4) in refusing to award her a vehicle that she asserts was a
gift from Williams; (5) in sustaining Williams’s objection to four photographs that
she sought to admit into evidence; (6) in sustaining Williams’s objection to her
questioning regarding whether he had seen a psychologist; and (7) in “failing to
award [her] primary conservatorship rights” to E.A.W. or, alternatively, in failing
to award her visitation pursuant to a standard possession order.
We affirm.
Background
Perez and Williams began living together in May 2010. At that time, Perez
was still married to Miguel Perez, and Williams had divorced his ex-wife, Devinah
Finn, in 2009. Both Perez and Williams had children from previous relationships.
2
Perez’s divorce from her previous husband became final on November 3, 2010.
E.A.W., the child of Perez and Williams, was born on October 12, 2011.
On January 29, 2013, Williams filed his original petition in a Suit Affecting
the Parent-Child Relationship (“SAPCR”) seeking to be named sole managing
conservator of E.A.W. and asking that Perez be ordered to pay child support to
him.
On March 1, 2013, Perez filed her original answer and counter-petition for
divorce, alleging that an informal marriage existed between Williams and herself
and seeking a disproportionate division of the resulting community estate. She
alleged that she and Williams “were married on or about June 2010 and have
ceased to live together as man and wife” and that they were the parents of E.A.W.
She also sought to be named E.A.W.’s sole managing conservator.
On October 7, 2013, Williams moved for partial traditional and no-evidence
summary judgment asserting that no genuine issue of material fact existed as to
whether he should be adjudicated the father of E.A.W. Williams also asserted
traditional and no-evidence grounds for summary judgment on the issue of
informal marriage.
On December 4, 2013, Perez filed her “Original Answer to Partial
Traditional and No-Evidence Summary Judgment.” She argued that both she and
Williams were married to other people when they first started their relationship,
3
they both divorced their respective spouses in 2010, they began cohabitating on
May 3, 2010, and E.A.W. was born on October 12, 2011. Perez argued that a fact
question existed as to whether the parties were informally married beginning in
January 2011, after her divorce from Perez was finalized. She supported her
response with her own affidavit, her 2010 divorce decree, E.A.W.’s birth
certificate listing Williams as the father, a copy of a document in which Williams
listed her as his “relative for contact purposes,” copies of greeting cards calling her
“wife,” and photographs of her “wedding rings.”
On December 5, 2013, the day after Perez filed her response, the trial court
held the summary judgment hearing. On December 13, 2013, “[a]fter considering
the motion and evidence submitted,” the trial court granted Williams’s motion for
partial summary judgment. It adjudicated Williams to be E.A.W.’s father, stated
that Williams and Perez “are found and declared not to be married,” and dismissed
the issues of marriage and division of community property from the suit.
The parties tried the remaining issues of conservatorship of E.A.W.,
visitation, and child support to the bench on February 6, 2014, and, following a
continuance to address problems with the translator, on March 28, 2014. On
February 6, 2014, Perez was represented by attorneys Mark Lipkin and Diane
Perez. Williams, who was likewise represented by counsel, testified that he had
three children with his ex-wife, Finn, and one child, E.A.W., with Perez. He had
4
earned an MBA from Harvard Business School and worked as an investment
banker until “early 2013” when he started his own oil-field service business so that
he would have more time to spend with his family.
Williams testified that he had been E.A.W.’s primary caregiver, had taken
her to her doctor’s appointments, and had provided for her basic care and support.
He stated that he had had exclusive care of E.A.W. since September 2013, when
Perez moved out of his house, “but even for the year-and-a-half prior to that she
was an absentee, inactive mother.” Williams testified that Perez was “active
during breastfeeding for a little bit and would be there, you know, a couple of
hours during the evenings, but she would run off to work and come back late at
night.” He testified that he was the one who changed E.A.W.’s diapers, prepared
her meals, and provided other care.
Regarding his relationship with Perez, Williams testified that he invited her
and her two teenaged sons to move in with him in spring 2010. He testified that
Perez’s oldest child, who was eighteen at the time of the trial, had been physically
violent toward him on multiple occasions and ultimately “had to leave the house”
in the fall of 2012. Williams also stated that Perez had hit, pushed, or shoved him
on “numerous occasions.” He testified that he never sustained any injuries
requiring hospitalization because he was much larger than Perez, but she was
frequently violent. He testified specifically about an incident in December 2010 in
5
which Perez “came at [him] with a knife” which resulted in a call to the police and
in Perez being charged with deadly conduct. He also testified about an incident
that occurred on Christmas Eve of 2012. Perez “became very violent in front of
my three older kids, . . . picked up a Christmas tree, threw it over. Started
punching and punching me as I stood between her and [E.A.W.] as she was
threatening to run out of the house with the baby.” Williams stated that, at that
point, he decided to ask Perez to leave his house and to file the underlying lawsuit.
Williams testified that he had never hit Perez or hurt her. However, she had
threatened to “make those allegations against him” and to “hurt herself and blame
it on [Williams]” and had followed through on those threats.
Williams testified that he filed the present suit one month after the Christmas
Eve incident, in January 2013. He also asked Perez to leave his home multiple
times, but she kept returning periodically. He eventually changed the locks in
September 2013. He also testified that he provided Perez with money to use
toward a deposit on an apartment so that she would have somewhere else to go.
Regarding Perez’s relationship with E.A.W., Williams testified that he
believed Perez loved E.A.W. However, he had also observed Perez “smack the
baby in the face” for being “too fussy” and because Perez believed the child had
“to learn to respect [Perez].” He stated that Perez had threatened to take the baby
to live in the Dominican Republic, where Perez was born and where she still had
6
family members residing. He also testified about an occasion when Perez became
violent with one of her sons from her previous relationship, and he introduced an
audio recording supporting his testimony.
Williams also testified regarding Perez’s employment. Williams purchased
a hair salon for Perez, and she operated it from “early 2010” on for the next several
years. Perez told Williams that she “rent[ed] out rooms in the back where people
would provide massages and sexual services” and that she “was selling stolen
items, clothing and other items in a little boutique she built in one of the massage
rooms.” He also testified that Perez had indicated that drug deals had occurred at
her salon on two occasions. Williams introduced copies of internet advertisements
for massage services and “adult entertainment” showing Perez in revealing
clothing. Williams testified that he discovered the advertisements in May 2013 by
searching phone numbers from Perez’s cell phone after he became “increasingly
concerned by [Perez’s] behavior and complete absence from [E.A.W.’s] life. . . .”
The trial court also admitted Perez’s “entertainer license” issued by “HPD Vice
Division,” which Perez had told Williams she needed to work in adult
entertainment. Williams testified that he knew Perez was involved on the
“periphery” of sexually-oriented business, but he did not know that she herself was
involved in it until after he filed the underlying suit.
7
Perez testified at trial that her relationship with Williams started out well,
but problems began to arise around the time she got pregnant with E.A.W. Perez
stated that Williams “never wanted the child” and encouraged her to get an
abortion. Perez also testified regarding her employment. She stated that she still
owned the salon and that she knew at one point a “young lady . . . was doing
massages to lose weight” at her salon, which Perez believed was illegal because
the woman did not have a license. Perez testified that she asked the woman to
leave.
Perez testified that when she left Williams’s home she took the Range Rover
that he had given her to drive. She drove the vehicle until Williams eventually sent
police to recover it, at which time she returned it to Williams’s residence.
Perez further stated that she attempted to visit E.A.W. “many times” after
Williams locked her out of his home, but he would not let her see her daughter.
Perez testified regarding an incident that had happened the day after Williams
changed the locks in September 2013, when she “went with the police” but was
refused entry by the neighborhood security.
The trial on the merits was then recessed “[b]ecause of translator problems.”
Trial resumed on March 28, 2014. Attorney David Altenbern appeared on Perez’s
behalf, along with her attorneys from the first day of trial, Lipkin and Diane Perez.
On the record in open court, Altenbern asked the trial court to grant Perez’s motion
8
to substitute him as her lead counsel. Williams’s counsel objected on multiple
grounds, including that he had not been served with notice of the motion, and the
trial court ultimately denied Perez’s request to substitute Altenbern as lead counsel
but allowed him to appear as co-counsel.
Perez then continued her testimony with her attorney, Lipkin, questioning
her. Perez testified that she had no history of psychiatric treatment, no criminal
history, and no history of substance abuse or illegal drug use. Perez also testified
that there were no restrictions on her custody or visitation with her other minor
child—her son from her previous relationship—and that she believed she had
“always taken care of [her] children.” She also stated that if she were awarded
custody of E.A.W., she would be able to provide for her care, that she would abide
by the trial court’s visitation orders, and that she would allow Williams access to
the child.
Perez testified that Williams had been violent with her on numerous
occasions. She testified that, in one instance, Williams struck her on the arm, and
she offered into evidence photographs “of what happened on that day,” but the trial
court refused to admit them into evidence after Williams objected on the basis that
Perez had not produced the photographs during discovery. Perez further
acknowledged that Williams had never been arrested based on her allegations of
9
violence. She acknowledged that she had been arrested, but not convicted, for
attacking Williams.
Perez testified that she had last seen Williams’s three children with Finn on
December 24, 2012. She also testified that Williams had told her that he had
supervised visitation with his three children and that he had to see a psychologist.
On cross-examination, she conceded that she had not seen any court orders from
his custody dispute with Finn and that Williams told her that the visitation and
family counseling arrangements were part of an agreement he had reached with
Finn. Perez admitted that she had met with Finn and Finn’s lawyers and that
Finn’s lawyers had offered her “money in this case to prolong it to affect that case”
but she did not accept it.
Perez asked the trial court to take judicial notice of two motions and a Rule
11 Agreement filed in Williams’s custody proceeding regarding his three children
with Finn. Williams objected on multiple grounds, including that Perez had not
provided certified copies of the documents to the trial court in making her request,
and the trial court sustained the objection. However, the trial court allowed Perez
to recall Williams to testify on these issues. 1 Williams testified that his visitation
with his and Finn’s children was governed by his 2009 divorce decree, that he
picked his children up at Finn’s house pursuant to that decree, that it was
1
The trial court also permitted Altenbern to conduct Williams’s questioning.
10
“incorrect” that his visitation with his children was required to be supervised, and
that he had never been required to pick his children up at a psychologist’s office.
Perez’s attorney asked multiple other questions regarding Williams’s custody
arrangements with Finn and regarding documents filed in that custody dispute,
including, “Have you seen a psychologist?” Williams’s counsel objected on
multiple bases, and the trial court sustained the objection. However, Williams
acknowledged that he entered into a Rule 11 Agreement with Finn, and he briefly
described the content and purpose of that agreement on the record.
On April 25, 2014, the trial court signed its order incorporating the previous
summary judgment ruling that Williams was adjudicated to be E.A.W.’s father and
that Williams and Perez were never married. The trial court declared Williams and
Perez joint managing conservators of E.A.W., with Williams receiving the
exclusive right to designate E.A.W.’s primary residence. Perez was granted
periods of visitation that were ordered to increase gradually until her visitation
schedule conformed with a standard possession order by April 1, 2015. The trial
court also ordered Perez to pay Williams child support in the amount of $195.69
per month until October 30, 2018, at which time her monthly payments would
11
increase to $223.64. Williams and Perez both signed the order under a heading
that provided that it was approved as to form and substance.2
Perez filed a motion for new trial complaining of various trial court rulings
before and during trial. The trial court denied the motion for new trial and this
appeal followed.
Summary Judgment on Informal Marriage Claim
In her first issue, Perez argues that the trial court erred in granting summary
judgment on the issue of informal marriage. Williams argues that the trial court
did not err in granting summary judgment on this issue. Among other grounds,
Williams asserts that the trial court properly granted his no-evidence motion for
summary judgment on this issue because Perez failed to file a timely response.
2
In his brief, Williams argues that this statement makes the trial court’s order an
agreed order and, thus, Perez cannot complain on appeal of any of its provisions.
However, for a judgment to be considered an agreed or consent judgment, such
that no appeal can be taken from it, either the body of the judgment itself or the
record must indicate that the parties came to some agreement as to the case’s
disposition; simple approval of the form and substance of the judgment does not
suffice. See, e.g., DeClaris Assoc. v. McCoy Workplace Solutions, L.P., 331
S.W.3d 556, 560 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Oryx Energy
Co. v. Union Nat'l Bank of Tex., 895 S.W.2d 409, 417 (Tex. App.—San Antonio
1995, writ denied) (holding that order, despite notation that it was “Approved and
Agreed,” was not agreed order when “nothing in the record or the judgment
indicates that the parties entered or even contemplated a settlement or agreed
judgment”). Each party must explicitly and unmistakably give its consent for a
consent judgment to be valid. Chang v. Nguyen, 81 S.W.3d 314, 318 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (stating that, for instance, body of
judgment must suggest that case had been settled or that judgment was rendered
by consent). No such agreement is evident in this case.
12
A. Facts Relevant to Summary Judgment on Informal Marriage
Williams moved for summary judgment on October 7, 2013, arguing, in
relevant part, that he was entitled to no-evidence summary judgment on the issue
of informal marriage because Perez could provide no evidence that they had agreed
to be married or that they had a reputation in the community for being married.
One day before the hearing on Williams’s summary judgment motion, Perez filed
her response and supporting evidence. The record does not contain any indication
that Perez sought leave to file her response late or that she sought a continuance of
the summary judgment hearing. The trial court stated in its order granting
Williams’s partial summary judgment motion that it considered “the motion and
evidence submitted.”
B. Standard of Review
The party moving for no-evidence summary judgment must specifically state
the elements as to which there is no evidence. See TEX. R. CIV. P. 166a(i). The
burden then shifts to the nonmovant to produce evidence raising a fact issue on the
challenged elements. Id. The reviewing court must view the evidence in the light
most favorable to the nonmovant, disregarding all contrary evidence and
inferences. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997). The trial court must grant the no-evidence summary judgment unless the
respondent brings forth more than a scintilla of probative evidence to raise a
13
genuine issue of material fact. TEX. R. CIV. P. 166a(i); see King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
A trial court need only consider the record as it properly appears before it
when the motion for summary judgment is heard. Billelo v. Techline Servs., L.P.,
372 S.W.3d 232, 235 (Tex. App.—Dallas 2012, no pet.) (citing WTFO, Inc. v.
Braithwaite, 899 S.W.2d 709, 721 (Tex. App.—Dallas 1995, no writ)); Marek v.
Tomoco Equip. Co., 738 S.W.2d 710, 712 (Tex. App.—Houston [14th Dist.] 1987,
no writ). The nonmovant must file its summary judgment response and evidence
at least seven days before the summary judgment hearing, unless the nonmovant
gets permission to file it later. TEX. R. CIV. P. 166a(c). If the court allows the late
filing of evidence, the court must affirmatively indicate in the record acceptance of
the late filing. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.
1996); Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 n.1 (Tex.
1988); WTFO, Inc., 899 S.W.2d at 721. Absent any indication leave was granted,
we must presume the trial court did not consider the late-filed evidence. See Fertic
v. Spencer, 247 S.W.3d 250–51 (Tex. App.—El Paso 2007, pet. denied); see also
Benchmark Bank, 919 S.W.2d at 663; WTFO, Inc., 899 S.W.2d at 721.
Furthermore, the summary judgment rules afford a party who did not have
adequate time an opportunity to obtain additional time to file a response, either by
moving for leave to file a late response or by requesting a continuance of the
14
summary-judgment hearing. TEX. R. CIV. P. 166a(c); Carpenter v. Cimarron
Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002) (discussing remedies
available for summary judgment nonmovants who have inadequate time to respond
to summary judgment motion and stating that trial court’s ruling on motions for
leave to late-file response or for continuance of hearing are reviewed for abuse of
discretion).
C. Analysis
Williams moved for summary judgment in part on the basis that Perez could
present no evidence that they had agreed to be married or had represented to others
that they were married. See TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 2006)
(providing that informal marriage exists if parties (1) agreed to be married,
(2) lived together in Texas as husband and wife after such agreement, and
(3) represented to others that they were married). Thus, the burden shifted to Perez
to produce summary judgment evidence raising a genuine issue of material fact on
these elements. See TEX. R. CIV. P. 166a(i). Perez filed a response the day before
the summary judgment hearing; thus, her response was untimely. See TEX. R. CIV.
P. 166a(c). Perez failed to move for leave to late-file her response or for a
continuance of the summary judgment hearing. Perez did not present any
explanation, either at trial or on appeal, for her failure to file a timely response to
Williams’s motion for summary judgment. Nor does it appear that the trial court
15
considered Perez’s late-filed response—the trial court’s partial summary judgment
order reflected that it considered only “the motion and evidence submitted” in
granting summary judgment on Williams’s paternity of E.A.W. and Perez’s
informal marriage claim.
Because nothing in the record indicates that the trial court granted leave for
Perez to file her response late, we presume that the trial court did not consider it,
and we likewise do not consider it on appeal. See Fertic, 247 S.W.3d at 250–51
(holding that appellate court would not consider plaintiff’s motion for partial
summary judgment filed in response to defendant’s no-evidence motion for
summary judgment because, even if it construed plaintiff’s motion as response, it
was not timely filed and court presumed that trial court did not consider it);
Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.—Houston [1st Dist.] 1991,
writ denied) (holding that appellant’s untimely amended response to motion for
summary judgment could not be considered); cf. Carpenter, 98 S.W.3d at 687–88
(holding that trial court did not abuse its discretion in denying motion for leave to
file late response because party offered no explanation for its failure to timely
respond).
Thus, although Perez argues that genuine issues of material fact remain on
all elements of her informal marriage claim, she failed to demonstrate that the
record before the trial court contained any such evidence at the time the court
16
heard Williams’s motion for summary judgment. See Billelo, 372 S.W.3d at 235.
Accordingly, Perez failed to meet her burden to produce summary judgment
evidence raising a genuine issue of material fact on these elements. See TEX. R.
CIV. P. 166a(i). We conclude that the trial court did not err in granting summary
judgment in favor of Williams on Perez’s informal marriage claim. See id.
We overrule Perez’s first issue.
Motion to Substitute Legal Counsel
In her second issue, Perez argues that the trial court erred in denying her
motion to substitute legal counsel following a continuance of the trial on the
merits. Perez argues that the trial court’s denial of her motion to substitute counsel
violated her fundamental right to counsel of her own choosing.
A. Facts Relevant to the Motion to Substitute Legal Counsel
On the second day of trial, Perez requested that the trial court grant her
motion to substitute new counsel, Altenbern. However, the trial court stated that it
had not received a motion for substitution and saw only Altenbern’s notice of entry
of appearance. Altenbern informed the trial court that the motion to substitute had
been electronically filed earlier that same day, and he asserted Perez’s right to have
counsel of her choosing represent her at trial.
Williams’s counsel opposed the motion to substitute, arguing that it was
“completely a surprise” and a “trial tactic” to attempt to substitute new counsel
17
with approximately an hour of trial remaining. He also argued that the motion to
substitute was untimely and not properly noticed and that Perez’s first attorney had
already begun questioning her and no other witnesses had been designated, so
“[t]here [was] no functional ability for [Altenbern] to take over and examine any
witness” under the “one witness, one lawyer rule.” The trial court denied
Altenbern’s motion to substitute, stating it was concerned that opposing counsel
did not have notice of the motion.
Neither the notice of Altenbern’s appearance on Perez’s behalf nor the
motion to substitute is included in the clerk’s record on appeal. Nor does it appear
from the record that Perez’s first attorneys, Lipkin and Diane Perez, sought to
withdraw or were unable to adequately represent Perez at trial.
B. Standard of Review
We review a trial court’s decision to grant or deny a motion to substitute
counsel for an abuse of discretion. Spinks v. Brown, 103 S.W.3d 452, 459 (Tex.
App.—San Antonio 2002, pet. denied). “Under an abuse of discretion standard, an
appellate court may reverse the decision of a trial court only if the trial court’s
ruling was without reference to any guiding rules or principles.” Id.; see Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
While a party has the right to be represented by counsel of its own choice,
that right is not absolute. See Spinks, 103 S.W.3d at 459. The Rules of Civil
18
Procedure provide that designations of new lead counsel and motions to withdraw
and substitute new counsel must be made in writing and that the party designating
new counsel or substituting a new attorney must serve notice on the court and all
other parties. See TEX. R. CIV. P. 8, 10.
C. Analysis
Although Perez argues on appeal that she filed a written notice of
Altenbern’s appearance as her counsel and a written motion to substitute him as
lead counsel, neither document appears in the record. The reporter’s record
reflects that Altenbern requested to be substituted as lead counsel for Perez in open
court at the beginning of the second day of trial. The trial court stated on the
record that it had not received a written motion to substitute, and Williams
objected on the basis that he had not received notice of the substitution. The trial
court sustained this objection and denied Altenbern’s request.
Because the record does not demonstrate that Perez filed a written motion or
notice to the trial court and all other parties, we cannot conclude that the trial court
abused its discretion in denying Perez’s oral request, made on the record mid-trial,
to substitute new lead counsel. See TEX. R. CIV. P. 8, 10; Spinks, 103 S.W.3d at
459.
We overrule Perez’s second issue.
19
Evidentiary Issues
In her third, fifth, and sixth issues, Perez argues that the trial court erred in
making various evidentiary rulings.
A. Standard of Review
“Evidentiary rulings are committed to the trial court’s sound discretion.” U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). A trial court abuses
its discretion if it acts without regard for guiding rules or principles. Id. To show
the trial court abused its discretion, an appellant must demonstrate that: (1) the
court erred in not admitting the evidence; (2) the excluded evidence was
controlling on a material issue dispositive of the case and was not cumulative; and
(3) the error probably caused rendition of an improper judgment in the case. Jones
v. Pesak Bros. Constr., Inc., 416 S.W.3d 618, 632 (Tex. App.—Houston [1st Dist.]
2013, no pet.) (citing TEX. R. APP. P. 44.1(a), and Tex. Dep’t of Transp. v. Able, 35
S.W.3d 608, 617 (Tex. 2000)). We uphold the trial court’s evidentiary ruling if we
discern a legitimate basis for it. Id. (citing Owens–Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
B. Court Documents
In her third issue, Perez argues that the trial court erred in refusing to admit
copies of court documents relating to Williams’s other judicial proceedings
20
“pursuant to the doctrine of judicial notice.” She argues that the documents were
relevant to the conservatorship proceedings and to E.A.W.’s best interests.
Perez asked the trial court to take judicial notice of two motions and two
copies of a Rule 11 Agreement—one handwritten draft and one typed final
agreement—filed in connection with Williams’s custody dispute with Finn. In
making her request for the trial court to take judicial notice, her attorney stated that
“certified copies are on the way, and I want . . . judicial notice taken in this case.”
Williams objected, arguing
[the documents are] not a proper subject matter for the judicial notice.
He’s required to provide the documents at the time he requests
judicial notice. Additionally, all of the motions are not by—by
operation of law evidence of anything. They are requests and
allegations subject to verification. So, I would object, one: Improper
verification; two: Improper presentation in this proceeding; three: Not
evidence, as a matter of law.
The trial court confirmed that none of the proffered documents were final orders,
but rather were motions and a Rule 11 Agreement, and it sustained Williams’s
objection.
However, Williams subsequently testified regarding some of the documents,
including the Rule 11 Agreement with Finn. He stated that the purpose of the
agreement was
to see my children that my ex-wife has kept from me for over a year
because of the actions of Ms. Perez at Christmas last year, sir. And it
was so I could see my kids for one day at Christmas at the museum.
21
And I agreed that I would take my kids and my ex-wife and me to
individual assessments with [a psychologist].
Perez subsequently asked to include the documents in the record as part of a bill of
exceptions, and the trial court admitted the documents for that purpose. The
documents that appear in the record are not certified—they contain only a file
stamp from the Harris County Clerk’s Office.
To be the proper subject of judicial notice, an adjudicative fact must be
“either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b); Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012). Judicial notice is
mandatory if a party makes the request and supplies the court with the necessary
information. See TEX. R. EVID. 201(c)(2); Coronado, 372 S.W.3d at 623; MCI
Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 484 n.7 (Tex. 2010). “Under this
standard, a court will take judicial notice of another court’s records if a party
provides proof of the records.” Coronado, 372 S.W.3d at 623 (citing Hinton, 329
S.W.3d at 497 n.21, and WorldPeace v. Comm’n for Lawyer Discipline, 183
S.W.3d 451, 459 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). The
contents of an unauthenticated or uncertified record from another court are not the
type of evidence of which the court can take judicial notice. Ex parte Luan Le, No.
05-12-00248-CV, 2013 WL 2725593, at *4 (Tex. App.—Dallas June 12, 2013, no
22
pet.) (mem. op.); see also Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—
Texarkana 2007, no pet.) (“Judicial records . . . from a domestic court other than
the court being asked to take judicial notice have not been deemed so easily
ascertainable that no proof is required; they are to be established by introducing
into evidence authenticated or certified copies . . . of those records.”).
Furthermore, “while the trial court can take judicial notice of the existence
of certain documents in its records, it ‘may not take judicial notice of the truth of
factual statements and allegations contained in the pleadings, affidavits, or other
documents in the file.’” Kenny v. Portfolio Recovery Assocs., LLC, —S.W.3d—,
No. 01–14–00058–CV, 2015 WL 1135410, at *3 (Tex. App.—Houston [1st Dist.]
Mar. 12, 2015, no pet.) (citing Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex.
App.—Houston [14th Dist.] 2011, no pet.)).
A trial court’s erroneous decision whether to take judicial notice of
requested facts is subject to a harm analysis under Rule of Appellate Procedure
44.1(a). See TEX. R. APP. P. 44.1(a); In re Estate of Downing, 461 S.W.3d 231,
239 (Tex. App.—El Paso 2015, no pet.). Thus, we may not reverse the judgment
of the trial court on this issue unless we conclude that the trial court erred and that
the error probably caused the rendition of an improper judgment. TEX. R. APP. P.
44.1(a).
23
Here, the trial court denied Perez’s request to take judicial notice of two
motions and a Rule 11 Agreement filed in another court in conjunction with
Williams’s custody dispute with Finn. However, the record reflects that Perez did
not provide the trial court with certified copies of the documents at the time she
requested that the court take judicial notice. Rather, her attorney stated on the
record that the certified copies of the documents were “on the way,” and the copies
provided in her bill of exceptions were likewise not certified. Under these
circumstances, we cannot conclude that the trial court erred in refusing to take
judicial notice of the motions and Rule 11 Agreement filed in that other case. See
Ex parte Luan Le, 2013 WL 2725593, at *4 (“[T]he contents of an unauthenticated
or uncertified record from another court is not the type of evidence of which the
court can take judicial notice.”).
Moreover, even if we determined that the trial court had erred in refusing to
take judicial notice of those documents, Perez cannot show that any such error
probably caused the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a); In re Estate of Downing, 461 S.W.3d at 239. The trial court could only
have taken judicial notice of the existence of the documents—it could not have
taken judicial notice of the truth of any factual statements or allegations contained
in those documents. See Kenny, 2015 WL 1135410, at *3. The existence of the
motions or Rule 11 Agreement filed in Williams’s custody dispute with Finn is not
24
relevant to issues of E.A.W.’s conservatorship or support. Furthermore, the trial
court permitted Perez to question Williams regarding his custody dispute with his
ex-wife, and he testified on the record regarding the purpose and content of the
Rule 11 Agreement.
We overrule Perez’s third issue.
C. Photographs
In her fifth issue, Perez argues that the trial court erred in excluding
photographs depicting bruising that she alleges she received from Williams.
Perez testified regarding one occasion when Williams struck her and offered
the photographs as evidence “of what happened on that day.” Williams objected
that she had laid an improper foundation for the photographs and that she had not
produced the photos in discovery responses in spite of their having been requested.
The trial court asked Perez’s counsel whether they had been produced, and he
responded, “I can’t tell you. I didn’t do the discovery, honestly.” The trial court
sustained Williams’s objection.
The Rules of Civil Procedure provide:
A party who failed to make, amend, or supplement a discovery
response in a timely manner may not introduce in evidence that
material or information that was not timely disclosed . . . unless the
court finds that:
(1) there was good cause for the failure to timely make, amend, or
supplement the discovery response; or
25
(2) the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the
other parties.
TEX. R. CIV. P. 193.6(a). The party seeking to introduce the evidence bears the
burden of establishing good cause or lack of unfair surprise or unfair prejudice.
TEX. R. CIV. P. 193.6(b).
After Perez proffered the photographs, Williams’s attorney objected on the
basis that although he had requested the photographs during discovery, Perez had
not produced them. Perez offered no explanation of her failure to produce the
photographs during discovery. Her counsel stated that he “didn’t do the discovery”
in this case. Thus, Perez failed to meet her burden under Rule of Civil Procedure
193.6(b). See Carpenter, 98 S.W.3d at 687 (citing predecessor rule to Rule 193.6
and holding that inadvertent failure to supplement responses was insufficient to
establish good cause, even if admitting evidence would not be unfair to opposing
party) (citing Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 672 (Tex. 1990)).
We cannot conclude that the trial court abused its discretion in excluding the
photographs from evidence. See In re T.K.D.-H., 439 S.W.3d 473, 480 & n.4 (Tex.
App.—San Antonio 2014, no pet.) (holding that trial court did not abuse its
discretion where proponent failed to produce photographs in discovery and failed
to provide good cause for admitting photographs).
We overrule Perez’s fifth issue.
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D. Questioning
In her sixth issue, Perez argues that the trial court erred in sustaining
Williams’s objection to her question, “Have you seen a psychologist?”
Perez asked Williams multiple questions about his custody dispute with
Finn, including, “Have you seen a psychologist?” Williams’s attorney objected to
this question, arguing, “There’s no motion on file by them to request any kind of
psychiatric care or examination.” The trial court sustained the objection. Perez’s
attorney argued that evidence of Williams’s mental health, including whether and
why he had seen a psychologist, was relevant. Williams’s attorney responded that
the question was “an impermissible attempt to get in the hearsay . . . [and]
impermissible filings and the motions in the other case.” He also asserted that the
question was improper because Perez had not filed any pleadings challenging
Williams’s mental health or seeking to require Williams to participate in
counseling or mental health treatment. The trial court again sustained Williams’s
objection. Williams did not answer the question, and Perez did not make an offer
of proof regarding what information she had expected to elicit from Williams on
this issue. However, Williams acknowledged that, as part his Rule 11 Agreement
with Finn, he “would take my kids and my ex-wife and me to individual
assessments with [a psychologist].”
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Perez cannot show that the excluded testimony was controlling on a material
issue dispositive of the case and was not cumulative or that the trial court’s ruling
probably caused the rendition of an improper judgment. See Jones, 416 S.W.3d at
632. Perez failed to make an offer of proof, so the record does not reflect what
Williams’s testimony on this topic would have been. See Akin v. Santa Clara Land
Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (“The
failure to make an offer of proof containing a summary of the excluded witness’s
intended testimony waives any complaint about the exclusion of the evidence on
appeal.”). Williams testified regarding his agreement with his ex-wife to attend
family counseling, but he did not indicate whether he had actually begun the
counseling. Thus, Perez failed to establish that Williams’s excluded testimony
would have been material to issues of custody and support of E.A.W. and that its
exclusion probably caused the rendition of an improper judgment, as required to
demonstrate that the trial court abused its discretion. See Jones, 416 S.W.3d at
632.
Thus, we cannot conclude that the trial court abused its discretion in
sustaining Williams’s objection to this question. See Waldrip, 380 S.W.3d at 132.
We overrule Perez’s sixth issue.
28
Gift of Vehicle
In her fourth issue, Perez argues that the trial court erred in “refusing to
determine that a gift existed for an award of a Range Rover motor vehicle.” Perez
argues that she testified that Williams intended that the Range Rover be a gift to
her and that Williams failed to provide any evidence contradicting her testimony.
Perez testified that after Williams asked her to leave his home, she took the
Range Rover with her. She stated that she had driven the car for three years until
Williams “sent for the car to be taken away from [her].” Perez testified that she
believed the Range Rover belonged to her. Williams’s counsel objected to this
testimony on relevance grounds and asserted that “[c]ar titles control
ownership. . . . It’s . . . not relevant what she thought.” The trial court sustained
this objection. Williams’s counsel also objected to further questioning regarding
ownership of the Range Rover, arguing that there were no property issues
remaining to be resolved in the trial because “[t]he divorce [issue] has already been
ruled on” and “there’s no suit for conversion or anything else.”
Perez’s counsel asserted that Perez’s testimony about the vehicle “doesn’t
have anything to do with property and property rights, but it has to do with how
Mr. Williams treated her and allowed her to take care of her son [from her previous
relationship].” The trial court overruled Williams’s objection and allowed Perez to
testify that Williams sent police to “take [the vehicle] away” and left her with no
29
other way to transport her son from a previous relationship except to use a taxi.
Perez testified, “[Williams] gave a Range Rover to me. . . . He told me that it was
a present, that it was mine.” She acknowledged that Williams had asked her to
return the Range Rover multiple times and had sent a certified letter requesting its
return before he sent the police to collect the vehicle. The trial court also admitted
into evidence the title to the Range Rover, listing Williams as the owner. Perez
acknowledged that she was not listed as the owner of the vehicle.
The record demonstrates that the Range Rover’s ownership was not at issue
during the bench trial. The trial court granted Williams’s partial motion for
summary judgment, ruling that the parties were never married and dismissing the
issues of divorce and property division from the case. We have overruled Perez’s
complaints regarding this order. Perez did not file any other pleadings that might
be construed as seeking a determination of ownership of the vehicle. See TEX. R.
CIV. P. 301 (providing that judgment must conform to pleadings).
Furthermore, when the question of whether the Range Rover was a gift from
Williams to Perez arose at trial, Williams objected to Perez’s testimony on the
ground that she had not sought an adjudication of her entitlement to the Range
Rover in any of her pleadings. He also objected on the basis that the title speaks
for itself and establishes that Williams was the sole owner of the vehicle. Perez’s
counsel then argued that the testimony was not intended to establish a property
30
right but to show how Williams treated her. Thus, the issue was not tried by
consent. See Reed v. Wright, 155 S.W.3d 666, 670 (Tex. App.—Texarkana 2005,
pet. denied) (holding that trial by consent applies in exceptional cases when record
as whole clearly demonstrates that parties tried unpled issue); Mastin v. Mastin, 70
S.W.3d 148, 154 (Tex. App.—San Antonio 2001, no pet.) (stating that to
determine whether issue was tried by consent, appellate court must examine record
for evidence of trial of issue).
We cannot conclude that the trial court erred in failing to grant relief that
Perez never requested.
We overrule Perez’s fourth issue.
Conservatorship of E.A.W.
In her seventh issue, Perez argues that the trial court erred in “awarding
primary conservatorship rights” to Williams. Because the trial court made Perez
and Williams joint managing conservators of E.A.W., we construe this as an
argument that the trial court abused its discretion by granting Williams the
exclusive right to determine E.A.W.’s primary residence. In the alternative, Perez
argues that the trial court erred in awarding her less-than-standard visitation.
A. Standard of Review
Trial courts have wide discretion to determine a child’s best interest,
including issues of custody, control, possession, and visitation. Gillespie v.
31
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Holley v. Holley, 864 S.W.2d 703,
706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Thus, we will reverse a
trial court’s determination of conservatorship only if a review of the entire record
reveals that the trial court’s decision was arbitrary or unreasonable. In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007); Patterson v. Brist, 236 S.W.3d 238, 239–40
(Tex. App.—Houston [1st Dist.] 2006, pet dism’d). A trial court does not abuse its
discretion “as long as some evidence of a substantive and probative character
exists to support [its] decision.” In re W.M., 172 S.W.3d 718, 725 (Tex. App.—
Fort Worth 2005, no pet.). We must view the evidence in the light most favorable
to the trial court’s decision and indulge every legal presumption in favor of its
judgment. Holley, 864 S.W.2d at 706.
When, as here, there are no findings of fact or conclusions of law, we
“presume that all factual disputes were resolved in favor of the trial court’s ruling.”
Aduli v. Aduli, 368 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Thus, we uphold the trial court’s ruling unless “it is so contrary to the
overwhelming weight of the evidence as to be wrong and unjust.” Id. at 814; see
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
B. Conservatorship Determination
Perez argues that she had no psychological or substance abuse problems and,
thus, there is no evidence supporting the trial court’s determination awarding
32
Williams the exclusive right to designate E.A.W.’s primary residence. Even
considering that evidence, we cannot conclude that the trial court abused its
discretion.
Viewing the evidence in the light most favorable to the trial court’s decision
and indulging every legal presumption in favor of its judgment, as we must, we
conclude that the trial court’s ruling is not so contrary to the overwhelming weight
of the evidence as to be wrong and unjust. See Holley, 864 S.W.2d at 706; Aduli,
368 S.W.3d at 813. Williams and Perez both testified regarding their interactions
with each other and with E.A.W., their respective employment, and their home
environments.
Williams testified that he had regular employment, stable housing, and
reliable transportation. Williams also testified that he had been E.A.W.’s primary
caregiver since she was born and that he had been her exclusive caregiver since
September 2013. Williams stated that he was a former investment banker who had
started a new career so that he would have more time for his family. He testified
about numerous instances in which Perez became violent with him or one of her
children, including E.A.W. Williams also testified that since he and Perez had
ended their romantic relationship Perez had advertised on “adult entertainment”
websites, and he provided copies of those advertisements to the trial court. Perez
33
did not contradict this evidence. Perez also acknowledged that she had been
arrested for assaulting Williams.
We conclude that the trial court’s decision to grant Williams the exclusive
right to determine E.A.W.’s residence was supported by “some evidence of a
substantive and probative character.” See In re W.M., 172 S.W.3d at 725. Thus,
the trial court’s conservatorship determination was not arbitrary or unreasonable
and did not constitute an abuse of discretion. See In re J.A.J., 243 S.W.3d at 616.
C. Visitation
Perez also argues that, even if we affirm the trial court’s conservatorship
determination, the trial court erred in not granting her visitation pursuant to a
standard possession order. However, we observe that the trial court’s order
provides that Perez is to have visitation with E.A.W. pursuant to a standard
possession order as of April 1, 2015. Thus, this complaint is now moot. See In re
H & R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.—Houston [14th
Dist.] 2008, orig. proceeding) (“An issue may become moot when a party seeks a
ruling on some matter which, when rendered, would not have any practical legal
effect on a then-existing controversy.”).
We overrule Perez’s seventh issue.
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Conclusion
We affirm the order of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
35