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In re A.M.

Court of Appeals of Texas, Fifth District, Dallas

December 16, 2013

In the Interest of A.M., a Child.

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Kent F. Brooks, Law Office Of Kent F. Brooks, Dallas, for Appellant.

Georganna L. Simpson, Georganna L. Simpson, P.C., Dallas, for Appellees.

Before O'NEILL, LANG-MIERS, and EVANS Justices.

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O'NEILL Justice.

In this suit affecting the parent child relationship, Father has appealed numerous procedural and evidentiary rulings including (1) a finding of domestic violence against him, (2) various evidence admitted at trial, (3) the validity of Mother's divorce from her prior husband and its relation to the division of community property, and (4) Mother's appointment as sole managing conservator. We affirm the trial court's judgment. Because the facts are well-known to the parties, we shall address only those relevant to dispose of each issue. TEX.R.APP. P. 47.1.

Entry of a Protective Order Without First Conducting a De Novo Review

In his first issue, Father argues the trial court abused its discretion by entering a protective order based upon the associate judge's family violence finding without first conducting a de novo hearing after a timely request. A trial court abuses its discretion if it fails to rule on a party's appeal from an associate judge's report. See Fountain v. Knebel, 45 S.W.3d 736, 740 (Tex.App.-Dallas 2001, no pet.).

Pursuant to the family code, a judge may refer certain matters to an associate judge for a hearing. TEX. FAM.CODE ANN. § 201.005 (West 2008). Upon ruling on the referred matter, the associate judge is to issue a report, which may contain the associate judge's findings, conclusions, or recommendations. Id. § 201.11(a). A party has the right to appeal the associate judge's report to the referring court within seven days of receiving proper notice of the associate judge's ruling. Id. § 201.015(a) (West Supp.2012). A party who timely appeals the associate judge's report is entitled to a hearing de novo before the referring court. Fountain, 45 S.W.3d at 739.

On September 17, 2009, an associate judge entered a temporary protective order, which included a finding of a history of domestic violence against Father because " family violence has occurred and is likely to occur in the future." The associate judge's protective order extended to both Mother and A.M., the child of the marriage.

Father appealed the associate judge's finding of a history of family violence and the issuance of a protective order. He requested a de novo hearing on September 21, 2009, which fell within the statutory deadline for requesting review. See TEX. FAM.CODE ANN. § 201.015(a) (party must request de novo review within seven days of associate judge's recommendation). The record shows the parties appeared before the trial court on October 8, 2009, but the de novo hearing was reset for November 10, 2009.

On November 5, 2009, the parties entered into a Rule 11 agreement in which the parties stipulated the following:

It has been represented to the Court that there has been no pattern of child neglect or family violence by any party to this case within the two years preceding the filing of this case or during the pendency of this case. Mother will agree to drop the Protective Order currently in place against father and will agree to sign or execute any additional documents necessary to accomplish removal of the current protective order for the benefit of Mother and against Father.

The de novo hearing was then removed from the trial court's docket by agreement. Findings of fact and conclusions of law later entered by the trial court state the trial court " declined to enter an Order based upon the Rule 11 Agreement on or

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about February 4, 2010." However, the record does not show any further action by Father to reset his appeal on the trial court's docket.

We agree with Mother that Father's inaction after the Rule 11 agreement waived his right to a de novo hearing of the associate judge's finding of family violence and entry of a protective order. While section 201.015(f) provides that after notice, the referring court " shall hold a de novo hearing not later than the 30th date" after a request, a party may also waive his right in writing or on the record. See TEX. FAM.CODE ANN. §§ 201.015(f), (g) (West Supp.2012). The purpose of section 201.015(f) is to require the prompt resolution of appeals from an associate judge's ruling. See In re A.J.F., 313 S.W.3d 475, 477 (Tex.App.-Dallas 2010, no pet.). Although Father did not waive his de novo review in writing, we conclude that by agreeing to remove the hearing from the docket after the parties entered into a Rule 11 agreement, Father indicated to the trial court his desire to no longer pursue a de novo review, as there was no longer any issue for the trial court to review that needed " prompt resolution." Id.

In reaching this conclusion, we are not persuaded by Father's reliance on Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex.App.-Dallas 2001, no pet.) in which this court stated, " Once a party has filed a notice of appeal, the party has completed the prerequisites necessary to be entitled to a de novo hearing." In that case, the party requesting de novo review of a discovery ruling timely filed her notice of appeal and despite the trial court's attempts to resolve the dispute informally, the appealing party continued to insist upon her right to a de novo review. Id. In fact, she appeared for a hearing on her appeal no less than three times and demanded a continuance when the case was called to trial because the referring court had failed to rule on her appeal. Id. Thus, unlike the present facts, there was no indication to the trial court in Fountain that the appealing party wished to waive her right to a de novo hearing. Rather, the party in Fountain continued to vigorously pursue a hearing, unlike Father. Accordingly, based on the facts before us, we cannot say the trial court abused its discretion by failing to conduct a de novo hearing. We overrule Father's first issue.

Admission of Transcription of Tapes

In his third issue, appellant argues the trial court erred by admitting the transcriptions of three audio tape recordings, over his objection, because Mother failed to disclose and produce all the tapes in her possession despite a proper discovery request. Mother responds Father has waived his arguments and alternatively, he was not unfairly surprised or prejudiced by the admission of the transcripts.

We review a trial court's decision to admit or exclude evidence under an abuse of discretion. Bufkin v. Bufkin, 259 S.W.3d 343, 351 (Tex.App.-Dallas 2008, pet. denied). The trial court's evidentiary ruling will be upheld if there is any legitimate basis for it. Id. The trial court abuses its discretion only if it acts in an ...

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