COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00510-CV
IN THE INTEREST OF A.E.A.,
A CHILD
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
This is an appeal from a bench trial in a high-conflict suit affecting the
parent-child relationship.1 Appellant David Harris appeals from a judgment giving
Appellee Ginger Adams the exclusive right to make decisions concerning the
education of their son, A.E.A. In two issues, David argues that the evidence is
insufficient to support the trial court’s finding of a material and substantial change
1
On our own motion, we utilize fictitious names for the parents of A.E.A.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2012).
in circumstances and that the trial court infringed on his due process rights. We
will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
When David and Ginger divorced in February 2008, A.E.A. was enrolled in
preschool and was about to turn five years old. The divorce decree provided for
joint conservatorship, and both David and Ginger were given ―the right subject to
the agreement of the other parent conservator, and further subject to the orders
of the Court herein below[,] to make decisions concerning the child’s education.‖
The divorce decree also included the following ―Special Provisions for
Education‖:
18. The Court finds that it is in the best interest of the minor
child to continue attending Crème de la Crème pre-school until such
time as the minor child shall begin attending elementary school,
AND IT IS SO ORDERED.
19. The court finds that it is in the best interest of the minor
child to attend Greenhill private school when he becomes eligible,
AND IT IS SO ORDERED. The Court further finds that the parties
may agree in writing for the minor child to attend a different school[,]
and in that event[,] the minor child shall attend the school so agreed
upon, AND IT IS SO ORDERED.
20. The Court finds that [DAVID HARRIS] shall continue to
pay the expenses for the minor child to attend Crème de la Crème,
AND IT IS SO ORDERED.
21. The Court finds that [DAVID HARRIS] shall pay all
tuition and expenses of the minor child to attend Greenhill private
school including expenses necessary for the minor child to
participate in school activities, AND IT IS SO ORDERED.
22. The Court finds that since it will be necessary for
[DAVID HARRIS] to make arrangements to pay for the expenses of
2
attending Greenhill private school, that [DAVID HARRIS] shall make
any necessary application, enroll the minor child[,] and make any
necessary arrangements with Greenhill private school in order for
the minor child to attend, AND IT IS SO ORDERED.
After the divorce decree was signed, A.E.A. completed preschool and
kindergarten at Crème de la Crème but was not granted admission to Greenhill.
A.E.A. attended elementary school in the Plano Independent School District.
In September 2010, David filed a petition to modify the parent-child
relationship in which he alleged that there had been a material and substantial
change in circumstances since the signing of the divorce decree. Among the
modifications David requested was that he be appointed as the person with the
exclusive right to make decisions concerning the child’s education.
Ginger answered and filed a counterpetition to modify, alleging that the
circumstances had materially and substantially changed since the date of the
divorce decree. Ginger requested, among other modifications, that she be
appointed as the person with the exclusive right to make decisions regarding the
child’s education, including the decision of where the child shall attend school.
Ginger also requested that temporary orders be made ordering David to pay child
support.2
2
The trial court signed temporary orders, ordering David to pay child
support and retaining Dr. Linda Threats as the parenting facilitator to assist the
parties in resolving parenting issues. David then amended his petition twice but
did not alter his declaration that the circumstances had materially and
substantially changed, nor did he alter his request to be named as the parent
with the exclusive right to make decisions concerning the child’s education.
3
After hearing argument on the competing motions, the trial court signed a
modification order, setting aside as moot the entire section of the divorce decree
entitled ―Special Provisions for Education‖ and granting Ginger the exclusive right
to make decisions concerning the child’s education. David requested findings of
fact and conclusions of law, which the trial court made, and filed a motion for new
trial raising due process complaints. This appeal followed.
III. JUDICIAL ADMISSION OF MATERIAL AND SUBSTANTIAL
CHANGE IN CIRCUMSTANCES
In his first issue, David argues that there is no evidence of a material and
substantial change in circumstances since the divorce decree was signed to
warrant a modification of the final decree.
Under section 156.101 of the Texas Family Code, a trial court may modify
conservatorship of a child if (1) the modification is in the child’s best interest and
(2) the circumstances of the child, a conservator, or other party affected by the
existing conservatorship order have materially and substantially changed since
the rendition of the existing order. Tex. Fam. Code Ann. § 156.101(a)(1)(A)
(West Supp. 2012); In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013,
no pet.). One party’s allegation of changed circumstances of the parties
constitutes a judicial admission of the common element of changed
circumstances of the parties in the other party’s similar pleading. L.C.L., 396
S.W.3d at 718 (citing Delaney v. Scheer, No. 03-02-00273-CV, 2003 WL 247110,
at *5 (Tex. App.—Austin Feb. 6, 2003, no pet.) (mem. op.)). Admissions in trial
4
pleadings are judicial admissions in the case in which the pleadings are filed; the
facts judicially admitted require no proof and preclude the introduction of
evidence to the contrary. Id.; see also Houston First Am. Sav. v. Musick, 650
S.W.2d 764, 767 (Tex. 1983). Thus, a ―judicial admission is conclusive upon the
party making it, . . . relieves the opposing party’s burden of proving the admitted
fact, and bars the admitting part[y] from disputing it.‖ Hennigan v. I.P. Petroleum
Co., 858 S.W.2d 371, 372 (Tex. 1993) (quoting Mendoza v. Fid. & Guar. Ins.
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). This rule is based on the
public policy that it would be absurd and manifestly unjust to permit a party to
recover after he has sworn himself out of court by a clear and unequivocal
statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex. Civ. App.—
San Antonio 1951, writ ref’d).
As set forth above, David and Ginger both filed motions to modify. David’s
first amended petition—his live pleading at the time of the modification hearing—
alleged that ―the circumstances of the child, a conservator, or other party affected
by the order [t]o be modified have materially and substantially changed since the
date of rendition of the order to be modified.‖ Ginger filed a counterpetition to
modify, alleging that ―[t]he circumstances of the child or a person affected by the
order have materially and substantially changed since the date of the rendition of
the order to be modified.‖ Thus, separately, both parties’ modification claims
required proof of the fact of changed circumstances of the child, a conservator, or
other party affected by the order to be modified. See Tex. Fam. Code Ann.
5
§ 156.101(a)(1)(A). But David’s allegation of changed circumstances constituted
a judicial admission of that fact and established that element of Ginger’s claim for
modification, so Ginger was not required to put on proof of this admitted fact.
And because David judicially admitted this element of Ginger’s claim in his first
amended petition to modify, David is barred on appeal from challenging the
sufficiency of the evidence to support the fact he judicially admitted––a material
and substantial change in circumstances. See L.C.L., 396 S.W.3d at 719
(holding that because competing motions for modification had been filed,
mother’s allegation of changed circumstances in her counterpetition for
modification constituted a judicial admission of that same essential element in
father’s claim for modification); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305
(Tex. App.—Houston [14th Dist.] 1995, no writ) (holding that in suit with
counterpetitions to modify, mother had judicially admitted to material and
substantial changes in the circumstances of her children in her pleadings and
was therefore barred from challenging the sufficiency of the evidence to support
the change of conservatorship); Thompson v. Thompson, 827 S.W.2d 563, 566
(Tex. App.—Corpus Christi 1992, writ denied) (holding that father had judicially
admitted in his motion to modify that there had been a material and substantial
change of circumstances and was therefore barred from challenging the
sufficiency of the evidence to support the change of conservatorship); Thornton
v. Cash, No. 14-11-01092-CV, 2013 WL 1683650, at *12 (Tex. App.—Houston
[14th Dist.] Apr. 18, 2013, no pet.) (mem. op.) (holding that the Thorntons were
6
barred from arguing on appeal that there was no evidence that the circumstances
had changed because they had judicially admitted this allegation in their petition
in intervention and in their counterpetition for modification).3 We overrule David’s
first issue.
3
David argues in his reply brief that the statement in his first amended
petition cannot be treated as a judicial admission because the statement was not
―unequivocal.‖ We reject David’s argument for two reasons.
First, he argues that the statement is contradicted by a sentence made in
his ―Response to Counter Petitioner’s Notice of Hearing on Temporary Orders
and Request for Temporary Orders‖ that there had ―been no material change in
circumstance that would warrant a temporary order requiring Petitioner to pay
child support.‖ But unlike a motion to modify custody, a motion to modify a child
support obligation does not require a showing of a material and substantial
change in circumstances when three years have elapsed since the order was
signed. See Tex. Fam. Code Ann. § 156.401(a)(2) (West Supp. 2012). Thus,
David’s statement of no change in circumstances for child support does not admit
any element that he was required to prove concerning child support. And David
does not challenge the child support order on appeal.
Second, the requirement that a statement be ―unequivocal‖ in order to be
treated as a judicial admission is listed, along with four other factors, in Carr. 242
S.W.2d at 229. In setting forth the five factors, the Carr court drew a distinction
between judicial admissions in pleadings and testimonial admissions from the
witness stand. Id. The Carr court warned that ―[t]he attempt of some courts to
draw an analogy between the statements of parties on the witness stand and
judicial admissions contained in pleading and agreements of counsel is not
entirely convincing‖ and then utilized the five factors to determine when a party’s
testimonial declarations would preclude recovery by the party. See id. Some
cases, including two from this court, have nonetheless—despite Carr’s express
language limiting application of the five-factor analysis to testimonial
admissions—applied Carr’s five-factor analysis to judicial admissions set forth in
pleadings. Compare Lee v. Lee, 43 S.W.3d 636, 641–42 (Tex. App.—Fort Worth
2001, no pet.) (setting forth five factors and correctly applying them to appellants’
counsel’s statements approving an inventory), with Dickinson v. Dickinson, 324
S.W.3d 653, 657–58 (Tex. App.—Fort Worth 2010, no pet.) (setting forth five
factors and applying them to statements made in pleadings), and Kaplan v.
Kaplan, 129 S.W.3d 666, 669–70 (Tex. App.—Fort Worth 2004, pet. denied)
(setting forth five factors and applying them to statements in appellant’s petition
7
IV. NO ABUSE OF DISCRETION, NO DUE PROCESS VIOLATIONS
In his second issue, David raises five subissues arguing that the trial court
abused its discretion and infringed upon his due process rights when the trial
court (a) entered findings of fact without any evidentiary support, (b) severely
limited his time for cross-examination of a recalcitrant witness, (c) allowed
testimony from documents not previously produced, (d) allowed personal bias to
affect its decision, and (e) made ―a series of decisions . . . throughout the
proceeding [that] resulted in the trivialization and evisceration of standard due
process rights upon which [David had] relied and to which he was entitled.‖ We
address each of David’s subissues below.
A. Sufficiency Challenges to Findings of Fact
In subissue (a), David argues that nothing in the record supports the trial
court’s findings that (1) there was a material and substantial change in
circumstances; (2) David made efforts to alienate A.E.A. from Ginger; (3) David
engaged in communications that were vulgar, profane, or indecent toward
Ginger; and (4) David failed and refused to engage in proper communication with
Ginger regarding A.E.A.’s education in a manner that was consistent with good
for bill of review). Because Carr’s five-factor analysis is expressly not applicable
to judicial admissions allegedly made in pleadings, we do not apply them to the
judicial admission in David’s pleading. See L.C.L., 396 S.W.3d at 719 (not
applying five-factor analysis to judicial admission of material and substantial
change in circumstances pleaded in modification suit); Casteel-Diebolt, 912
S.W.2d at 305 (same); Thompson, 827 S.W.2d at 566 (same); Thornton, 2013
WL 1683650, at *12 (same).
8
co-parenting.4 David further argues that the record does not support the trial
court’s conclusion of law that the Greenhill Private School provision in the divorce
decree is moot and that the trial court did not issue adequate findings of fact.
The pertinent findings of fact and conclusions of law made by the trial court
are set forth below:
Findings of Fact – SAPCR
1. Petitioner and Respondent are the parents of the
following child:
Name: [A.E.A.]
Sex: Male
Birth date: 03/24/2003
2. It is in the best interest of the child that [David Harris] and
[Ginger Adams] be retained as joint managing conservators of the
child. Further, it is in the best interest of the child that [Ginger
Adams] have the exclusive right to make decisions concerning the
child’s education based upon the material and substantial change in
circumstances of the child and the joint managing conservators
since the date of the Final Decree of Divorce entered on February 7,
2008. It is in the best interest of the child that all other rights and
duties of the parties as joint managing conservators should remain
as set forth in the Final Decree of Divorce entered on February 7,
2008.
4
During oral argument, David’s counsel asserted that English was not
David’s first language and that his communications with Ginger in English
seemed harsher because of his language barrier. The trial court, however, is the
sole judge of the weight and credibility of the evidence, and the trial court had the
opportunity to observe David’s speech and language in the trial court and to take
any language issues into account prior to making its findings of fact. See, e.g.,
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing
Pool v. Ford Motor Co., 715 S.W.2d 629, 634–35 (Tex. 1986) (op. on reh’g)); In
re Marriage of Collier, No. 07-09-00146-CV, 2011 WL 13504, at *2 (Tex. App.—
Amarillo Jan. 4, 2011, no pet.).
9
Findings of Fact – Possession
....
Findings of Fact – Child Support
....
Other Findings of Fact
10. The child has not been accepted to attend Greenhill
Private School.
11. Dr. Linda Threats has been unable to assist the parties
in dealing with their conflict in her role as parenting facilitator[,] and
the Court further finds as follows:
a. the relationship between [Ginger Adams] and
[David Harris] is a high conflict relationship, especially in the
context of the child’s education, primarily due to the improper
conduct and condescending attitude of [David Harris];
b. [Ginger Adams] has demonstrated a desire,
willingness[,] and ability to engage in proper communication
with [David Harris] regarding the child’s education in a manner
that is consistent with good co-parenting;
c. [David Harris] has failed and refused to engage in
proper communication with [Ginger Adams] regarding the
child’s education in a manner that is consistent with good co-
parenting;
d. [Ginger Adams] has demonstrated the ability to
make decisions regarding the child’s education that are in the
best interest of the child and to communicate with [David
Harris] regarding those decisions;
e. [David Harris] has failed to demonstrate the ability
to make decisions regarding the child’s education that are in
the best interest of the child and to communicate with [Ginger
Adams] regarding those decisions;
10
f. [David Harris] has engaged in conduct intended
to alienate [Ginger Adams] from the child; and
g. [David Harris] has engaged in communications
that are vulgar, profane, obscene, indecent, coarse, insulting,
disparaging, condescending, or offensive toward [Ginger
Adams].
....
Findings of Fact as Conclusions of Law
15. Any finding of fact that is a conclusion of law shall be
deemed a conclusion of law.
Conclusions of Law – Conservatorship
1. [David Harris] and [Ginger Adams] should be retained
as joint managing conservators of the child and that [Ginger Adams]
should have the exclusive right to make decisions concerning the
child’s education. All other rights and duties of the parties as joint
managing conservators shall remain as set forth in the Final Decree
of Divorce entered on February 7, 2008.
Conclusions of Law – Possession
....
Conclusions of Law – Child Support
....
Conclusions of Law – Other
6. The Special Provisions for Education contained in the
Final Decree related to the child attending Greenhill Private School
are set aside as moot.
7. The appointment of Dr. Linda Threats as the Parenting
Facilitator should be terminated.
11
8. The child shall continue to attend Kumon tutoring and
karate as set forth in the Temporary Orders entered in this case on
November 2, 2010, and the payment for such tutoring and karate
shall remain as set forth in the Temporary Orders entered on
November 2, 2010.
9. A mutual injunction as to both parties should be entered
as to the following:
a. disturbing the peace of the child or of any other
party.
b. hiding or secreting the child from the other party;
c. making vulgar, profane, obscene, indecent,
coarse, insulting, disparaging, condescending, or offensive
remarks regarding the other party or the other party’s family in
the presence or within the hearing of the child;
d. communicating with the other party in person, by
telephone, electronically, or in writing in vulgar, profane,
obscene, or indecent language or in a coarse, insulting,
disparaging, condescending, or offensive manner;
e. threatening the other party in person, by
telephone, electronically, or in writing to take unlawful action
against any person; and
f. placing one or more telephone calls,
anonymously, at any unreasonable hour, in an offensive and
repetitious manner, or without a legitimate purpose of
communication.
10. [Ginger Adams] shall be awarded a judgment of
$20,000.00 against [David Harris] for attorneys’ fees and costs, with
post-judgment interest, until paid in full.
11. The Final Decree of Divorce signed on February 7,
2008 shall continue in full force and effect to the extent it is not
expressly modified herein.
12
A trial court’s findings of fact have the same force and dignity as a jury’s
answers to jury questions and are reviewable for legal and factual sufficiency of
the evidence to support them by the same standards. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d
791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292
S.W.3d 660, 663 n.3 (Tex. 2009).
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact, (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support the
finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
13
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered
to prove a vital fact is so weak as to do no more than create a mere surmise or
suspicion of its existence, the evidence is no more than a scintilla and, in legal
effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983). More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about the
existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d
253, 262 (Tex. 2002).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool, 715 S.W.2d at 635; Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
1. Finding of Material and Substantial Change in Circumstances
Regarding David’s first challenge to the findings of fact—that nothing in the
record supports the finding that there was a material and substantial change in
circumstances—as set forth above, David judicially admitted this fact in his
pleadings and is thus precluded from challenging on appeal the sufficiency of the
evidence to support this fact. See L.C.L., 396 S.W.3d at 719; Casteel-Diebolt,
14
912 S.W.2d at 305; Thompson, 827 S.W.2d at 566; Thornton, 2013 WL 1683650,
at *12. We overrule this portion of David’s subissue (a).
2. Finding that David Has Engaged in Conduct Intended to Alienate
A.E.A. from Ginger
David challenges the trial court’s finding of fact that he had engaged in
conduct intended to alienate A.E.A. from Ginger. Specifically, David argues that
the finding lacks evidentiary support, and he attempts to show that it was Ginger
who attempted to alienate the child from him. The record, however, reveals that
as part of his modification request, David was pursuing a possession schedule in
which A.E.A. would spend seven days with him and then seven days with Ginger.
In addition, David requested that he be allowed to pick up A.E.A. every day from
school and keep him from 2:30 to 6:30 p.m.—even during the weeks that A.E.A.
is supposed to be with Ginger—so that David could work with A.E.A. on his
homework and take him to his afterschool activities. David testified that he was
not willing, however, to let Ginger pick up A.E.A. on David’s days when David is
not available to pick up A.E.A. after school. Moreover, after Ginger’s father
passed away, David e-mailed Ginger: ―Don’t keep [A.E.A.] in the house with you
for [the] next few days. He should not witness all the sorrow that is going on, it
will be too hard on him.‖ David further urged Ginger: ―Don’t take [A.E.A.] to [the]
funeral tomorrow[;] he is too young and fragile[;] it will be too hard for him to
handle.‖ The preceding, viewed in the light most favorable to the trial court’s
finding of fact, constitutes more than a scintilla of evidence that David engaged in
15
conduct intended to alienate A.E.A. from Ginger and is legally sufficient to
support the trial court’s finding. Furthermore, after considering and weighing all
of the evidence in the record pertinent to that finding, we cannot say that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the finding should be unfound. We
therefore overrule this portion of David’s subissue (a).
3. Finding that David Engaged in Vulgar, Profane, or Indecent
Communications with Ginger
David also challenges the sufficiency of the evidence to support finding of
fact 11g, which states that David ―engaged in communications that are vulgar,
profane, obscene, indecent, coarse, insulting, disparaging, condescending, or
offensive toward [Ginger].‖ Specifically, David argues that his communications
with Ginger did not rise to the level of ―vulgarity, profanity, or indecency.‖
Of the 724 pages of exhibits that were admitted at trial, most contain
e-mails from David to Ginger that include statements like the following, which are
set forth exactly as they appear in the record with the exception that the child’s
name has been reduced to initials:
The way you are steering this child’s education, you can be
sure he will end up one just like your brothers or yourself who
is working in dept. store selling cosmetics at age of almost 50.
What other grade plans do you have for his future? may be
driving cab like your father does.
The latest approach that you have taken by sweet talking his
teacher to make sure he will get passing grade will not work.
You did the same thing when you were going to school and
finally got your useless degree, is this what you have in mind
16
for him, or either marry a professional wife who will work and
bring money home when he sits at home playing video games.
I am sure you know who I am referring to, or get a degree like
you did and work in department store.
I am trying to figure out what is a good word to use for people
like you ! if I call you a MOTHER I think I would be insulting
every good mother in this world, if I call you a NANY I think
they spend more times with the kids that they take care of and
do more things for them than you have ever done for [A.E.A.],
and if you want examples I will give you a few.
When are you going to make [A.E.A.] priority in your life rather
than yourself to come first and him second??
Last Wednesday when I took [A.E.A.] to his Karate class when
he took his socks off to go to his DoJo, I saw the socks that he
is wearing don’t match. You send this child out of your house
without matching socks, don’t even provide him with the bare
necessity for his school function.
I don’t know if you understood what Mrs. Stow said about
[A.E.A.]’s math., ―he is right on the river‖ this is the same child
who was ahead in math. when he was in first grade. He was
going to different tutoring classes last year until you pulled him
out of that one and enrolled in math. in Kumon. This is what
Mrs. Stow had to say about Kumon ―their academic is
repetitious, you can buy their works at any grocery store‖ I
suggest you ask her what she think about Kumon. Why
haven’t you realized this yourself? don’t you work with
[A.E.A.] on his Kumon homework’s? He does the same
homework’s for his reading, writing and math. over and over, it
has been like this for long time. You had to sign him up for
Study Buddy for his reading and writing now he is failing math.
Every time you have tried to make decision for education of
this child you have made wrong one.
You are destroying this child’s future with your repeated wrong
decisions you are making for him. CAN YOU DO ONE THING
RIGHT FOR HIM????
I have told you so many times, if you don’t have the time or
desire to attend to his needs to let me know and I will do it.
17
You don’t have the time to take him to his swimming classes,
ice scatting classes, study with him, help him on his school
projects, take him to his Martial art classes, take him to his
Summer Camp, even attend his birth day parties with his
friends when you are invited so far ahead of time and then you
ask me to sign him up for Piano classes. What kind of mother
are you any way. Take this as the last warning, either start
taking care of this child the way he needs to be taking care of
or I will take you back to court and let the legal system make
you do it.
Unfortunately these facts are too advance for your
comprehension and probably don’t even know what I am
talking about now or ever. You are the cause of his
unhappiness and being under so much pressure from his unfit
friends at school, you are the cause of his tears. Does any of
these matter to you, we both know the answer.
[A.E.A.] gave me your message about, you not wanting to take
him to his karate classes if I don’t sign him up in Kumon for
Summer time. Give me one reason he should go to Kumon in
Summer time! he needs to rest in Summer time, his mind
need to relax free of studing so that he will be ready for next
year. What does him not going to Kumon has anything to do
with his karate class?, or this is another one of your selfish
reasons to stop his growth more than you already have.
[Regarding Ginger’s decisions to not allow A.E.A. to go to a
friend’s house:] ―It will only takes a sick mind in a sick person
to make a child cry, three times in two and a half hours.‖
I looked at the poster you made for [A.E.A.] This poster was
supposed to be done to show [A.E.A.]’s progression in his life
by using collage, not about your family picture album. There
are more pictures of your family and relatives then [A.E.A.]’s
pictures. What this poster tells everyone who looks at it is
how you feel about your family and relatives rather than
subject matter about [A.E.A.]
The T shirt you put on [A.E.A.] on Tuesday when you sent him
to school didn’t look good, it is too old and has been used too
many times. Try to put better clothing on him, he deserves a
lot better.
18
The 100% Polyester Winter coat that [A.E.A.] was wearing
today was too hot for him, he was complaining to be too hot
this afternoon when I picked him up from school. Low this
morning was only 52, either put on the Fall coat that I got him
on for him or return it, so he can use it while he is here. There
is no sense of you holding on to it and him not be able to wear
it.
You are taking a half sandwich to [A.E.A.]’s school at 8:15
a.m. when his lunch break is at 11:15, bread will get soggy by
the time when he starts eating it, furthermore a half sandwich
is not nearly enough to fill him up, what happened to salad or
chips?, that is why some Wednesdays when I pick him up
from school he tells me he is hungry, pay more attention to
him. you have one hour for lunch every day and I am sure you
eat descent meal, how about [A.E.A.]?, can you not take lunch
to him at your lunch break?, Last week I saw the way you had
him dressed and now his food. Asking me to take you and
him to dinner is not what he needs. There are so many other
important things he needs that you are denying him of. When
are you going to start paying attention to his needs???
Try not to give [A.E.A.] fried food such as french fries or
chicken nugets more than once a week, in order to cut down
on him eating too much of fried greasy food. Look at
American Pediatricien Journal for month of July of this year.
Before you heat up [A.E.A.]’s food in the microwave any
longer than you already have, call Dr. Shams and let him tell
you what kind of harm it can do to him.
Don’t start [A.E.A.] into wearing neckless, the next thing he will
be asking is ear rings, noise rings and the list will go on. In
this corrupt society specialy for teen agers, you either have to
start showing them deciplin at the age that he is or deal with
concequences later. Don’t let you emotions and motherly love
get on the way of making the right decisions for him. He is the
only one you have.
Our review of the record demonstrates that David’s e-mails to Ginger support the
trial court’s finding that his communications were ―coarse, insulting, disparaging,
19
condescending, or offensive.‖ These descriptions are included in finding of fact
11g but are not challenged by David on appeal. Although David’s emails may
not rise to the level of ―vulgar‖ or ―profane,‖ we note that the trial court’s finding is
clearly cast in the disjunctive, using the word ―or‖ at the end of the list of
adjectives modifying the type of communications. Because the trial court’s
finding is cast in the disjunctive and because the record contains legally and
factually sufficient evidence to support the unchallenged portion of the trial
court’s finding that David’s communications to Ginger were ―coarse, insulting,
disparaging, condescending, or offensive,‖ we hold that the evidence is legally
and factually sufficient to support finding of fact 11g. Accord, e.g., In re Rose,
144 S.W.3d 661, 729 (Tex. Rev. Trib. 2004, no appeal) (stating that when the
constitutional grounds for removal are stated in the disjunctive, error as to one of
the grounds is harmless; in order to prevail, the judge must show that none of the
Commission’s conclusions is correct). We overrule this portion of David’s
subissue (a).
4. Finding on Co-parenting
David challenges finding of fact 11c—which states that David has failed
and refused to engage in proper communication with Ginger regarding the child’s
education in a manner that is consistent with good co-parenting—arguing in a
portion of one sentence that there is no evidence in the record with respect to his
co-parenting abilities. We cannot agree; the record is replete with evidence of
David’s co-parenting style. The portions of the e-mails from David to Ginger that
20
are set forth above—including those that deal with A.E.A.’s education—show that
many of David’s communications with Ginger are ―coarse, insulting, disparaging,
condescending, or offensive.‖ As such, they demonstrate that David has failed to
engage in proper communication with Ginger regarding A.E.A.’s education and
are inconsistent with good co-parenting.5 After reviewing the record, we hold that
the evidence is legally and factually sufficient to support finding of fact 11c. We
overrule this portion of David’s subissue (a).
B. Conclusion of Law that Greenhill Provision in Decree Is Moot
David also challenges the trial court’s conclusion of law that the provision
in the decree regarding Greenhill Private School is moot. He argues that this
conclusion does not flow from the record, from the relief requested, or from the
evidence.
Following the modification hearing, the trial court gave Ginger the
exclusive right to make decisions concerning A.E.A.’s education. Because the
trial court gave Ginger the exclusive right to decide where A.E.A. attends school,
the Greenhill Private School provision in the divorce decree was no longer
5
In the final decree, the trial court
ORDERED that the parties shall conduct themselves at all times in a
manner that will minimize the exposure of the child to harmful
parental conflict. Each party is ORDERED not to make negative
remarks about the other party or the other party’s family. Each party
is further ORDERED to be respectful to the other party and the other
party’s family in the presence of the child. The parties are
ORDERED to communicate with each other in a polite, civil, and
cooperative manner and to attempt to resolve disputes concerning
the child with dignity and by focusing on the best interest of the child.
21
appropriate or necessary. Moreover, as set forth above, finding of fact 10 states,
―The child has not been accepted to attend Greenhill Private School.‖ It is
undisputed that A.E.A. was denied admission to Greenhill Private School by a
letter dated March 13, 2009, and that David did not attempt to reapply for
admission for A.E.A. in 2010, 2011, or 2012.6 The trial court therefore did not
abuse its discretion by entering a conclusion of law declaring the Greenhill
Private School provision in the divorce decree to be moot. See, e.g., Grant v.
Grant, 358 S.W.2d 147, 148 (Tex. Civ. App.— Waco 1962, no writ) (explaining
that ―[a] case, issue, or proposition is, or becomes moot or abstract, when it does
not, or ceases to rest on any existing fact or right‖). We overrule this portion of
David’s subissue (a).
C. Adequacy of Findings for Both Prongs of Modification
To the extent that David argues that the ―findings issued by the trial court
are devoid of essential facts to justify the court’s conclusion that its decision met
both prongs that must be satisfied to grant a modification,‖ we cannot agree. We
have held above that the first prong—a material and substantial change in
circumstances—was judicially admitted, and we have also held that the evidence
is legally and factually sufficient to support the findings of fact that were
challenged by David that support the second prong—best interest. The evidence
6
Ginger’s counsel argued during oral argument that the trial court also
could have determined that it was not in A.E.A.’s best interest to repeatedly be
rejected from Greenhill Private School, to attend a difficult school he could not
keep pace in, or to transfer to a school away from his friends.
22
is thus legally and factually sufficient to support both of the statutory elements
required for modification,7 and we overrule this portion of David’s subissue (a).
Having determined that the record contains legally and factually sufficient
evidence to support the trial court’s findings of fact and conclusions of law, we
overrule David’s subissue (a) in total.
D. David Failed to Object and Make an Offer of Proof Regarding Any Due
Process Violations that Occurred During Cross-Examination
In subissue (b), David argues that the trial court infringed on his due
process rights when it refused to allow him to meaningfully cross-examine
Ginger. Specifically, David complains that he had only ninety-eight seconds
remaining to cross-examine Ginger. The record reveals that the trial court
allowed each side two and a half hours to present his or her case. Throughout
the course of the modification hearing, the trial court gave each party updates on
the time that he or she had remaining. After the trial court informed David’s
counsel that he had ninety-eight seconds remaining, David’s counsel continued
7
As set forth above, finding of fact 2 states, ―It is in the best interest of the
child that [David Harris] and [Ginger Adams] be retained as joint managing
conservators of the child. Further, it is in the best interest of the child that
[Ginger Adams] have the exclusive right to make decisions concerning the child’s
education based upon the material and substantial change in circumstances of
the child and the joint managing conservators since the date of the Final Decree
of Divorce entered on February 7, 2008.‖ [Emphasis added.] See Tex. Fam.
Code Ann. § 156.101(a)(1) (setting forth requirements for modification: that
modification would be in the best interest of the child and that the circumstances
of the child, a conservator, or other party affected by the order have materially
and substantially changed since the rendition of the order).
23
asking questions that fill three and a half pages in the record but did not object to
the time limit, nor did he make an offer of proof.
The trial court has ―inherent power‖ to control the disposition of the cases
on its docket ―with economy of time and effort for itself, for counsel, and for
litigants.‖ Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.]
1994, writ denied) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct.
163, 166 (1936), cert. denied, 516 U.S. 868 (1995)). Moreover, assuming that
the effect of the time limit was to exclude evidence, error may not be predicated
on a ruling excluding evidence unless a party makes known to the court the
substance of the evidence by an offer of proof. Tex. R. Evid. 103(a)(2). Because
David did not object to the two-and-a-half-hour time limit nor make an offer of
proof concerning evidence that was excluded because of the allegedly restrictive
time constraints, we have nothing to review. See Health Enrichment & Longevity
Inst., Inc. v. State, No. 03-03-00578-CV, 2004 WL 1572935, at *5 (Tex. App.—
Austin July 15, 2004, no pet.) (mem. op.) (holding that there was nothing to
review because appellants did not make an offer of proof concerning evidence
excluded due to time constraints). We overrule David’s subissue (b).
E. David Failed to Object to Admission of Testimony from Diary
In subissue (c), David argues that the trial court abused its discretion by
allowing Ginger, ―over a proper objection,‖ to ―retrieve an unproduced diary, read
it, and then put the information into evidence and the record.‖ The record,
however, reveals that David did not object when Ginger first asked to review her
24
diary containing her work calendar in order to answer questions from David’s
counsel about when she had taken A.E.A. on a summer vacation. Ginger
referred to the diary, but she did not testify from it. More than one hundred
twenty pages later in the record, David objected to Ginger allegedly testifying
from the diary. David’s objection was untimely. See Tex. R. App. P. 33.1(a); see
also Tex. R. Evid. 103(a)(1). Because David’s objection was untimely, we hold
that any alleged error is not preserved and that David waived his complaint. See
Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). We overrule
David’s subissue (c).
F. Record Does Not Support David’s Claims for Bias and Prejudice
In subissue (d), David argues that the trial court’s negative disposition
toward him deprived him of a proceeding before a fair and impartial judge. David
points to the trial court’s statement on the record that David was ―irritating‖ the
judge and argues that the trial court’s bias directly affected its rulings in allowing
Ginger to use unproduced documents at trial, that is, her diary. As we have held
above, the trial court did not allow Ginger to testify from an unproduced
document; instead, she used the diary to refresh her memory regarding when
she took A.E.A. on a summer vacation. Moreover, the record does not support
David’s claims of judicial bias and prejudice.
The Texas Supreme Court has stated,
[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion, and opinions the judge forms during a trial
do not necessitate recusal unless they display a deep-seated
25
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Furthermore,
expressions of impatience, dissatisfaction, annoyance, and even anger do not
establish bias or partiality. Id. at 240. A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune. Id. (quoting Liteky, 510 U.S. at 556,
114 S. Ct. at 1157).
Here, the record establishes that the trial court instructed David to answer
the questions asked of him without adding nonresponsive material to his
answers, and when David continued to give nonresponsive answers, the trial
court stated its frustration on the record, called for a break in the proceedings,
and suggested that David’s attorney use the break to talk to David about his
responsiveness to questions. We hold that the trial court’s statements did not
establish bias or prejudice.8 See In re D.L.S., No. 02-10-00366-CV, 2011 WL
2989830, at *5 (Tex. App.—Fort Worth July 21, 2011, no pet.) (mem. op.)
(holding that, on the record presented, trial judge did not demonstrate any bias).
We overrule David’s subissue (d).
8
Because we hold that the record does not reveal any judicial bias against
David, there is no legal basis to support David’s request that the case be
transferred to another court.
26
G. No Deprivation of Due Process Rights Occurred
In subissue (e), David argues that ―a series of decisions by the trial court
throughout the proceeding resulted in the trivialization and evisceration of
standard due process rights upon which [he] relied and to which he was entitled‖
and that such decisions caused ―an unacceptable risk of erroneous deprivation of
[his] right to make decisions regarding the education of the Child.‖ In essence,
David argues that the cumulative effect of the trial court’s allegedly erroneous
rulings deprived him of due process. Because we have overruled each of
David’s due process arguments, holding that no due process violations are
apparent in the record, we overrule David’s subissue (e) and the entirety of his
second issue.
V. CONCLUSION
Having overruled each of David’s issues and subissues, we affirm the trial
court’s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER and WALKER, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: July 18, 2013
27
in the Interest of A.E.A., a Child
Combined Opinion