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Clack v. Wollschlager

Court of Appeals of Texas, Eleventh District

December 19, 2013

CYNTHIA L. CLACK, Appellant.

On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM-47, 213

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



Judge Les Hatch entered a Rule 13 sanctions order in which he ordered Cynthia L. Clack, an attorney, to pay $17, 670 as a sanction for her conduct in the underlying lawsuit.[1] See Tex. R. Civ. P. 13. We affirm.

Clack contends that Judge Hatch, who heard the sanctions motion, entered the order, and levied the fine, abused his discretion when he found her allegations of "trickery and collusion" between opposing counsel and Judge Dean Rucker, the trial judge in the underlying custody case, were groundless and brought in bad faith.

I. Background Facts

A. The Underlying Case

Clack represented Kimberly Low Carlson in a highly contested child custody case between Carlson and her ex-husband, Larry Wollschlager.[2] David R. McClure represented Wollschlager. Carlson and Wollschlager's child suffers from a condition that requires continuous medical care, and given those special health needs, the parental rights and duties, including financial obligations, were highly contested.

Following a settlement in mediation, Judge Rucker signed an agreed order. Judge Rucker appointed Wollschlager and Carlson as joint managing conservators of the child; restricted the child's residence to Midland County, Texas; and gave each parent the exclusive right to designate the child's primary residence within Midland County during his or her periods of possession.

Subsequently, Carlson moved to modify the order and sought to be designated sole managing conservator of the child with no geographic restriction on his place of residence and to make Wollschlager fully responsible for the child's medical expenses. Wollschlager countersued, seeking to be designated as joint managing conservator with the exclusive right to designate the child's primary residence. Carlson requested a jury trial, and the case was placed on the jury docket.

Two weeks before the date set for trial, Wollschlager moved to strike the case from the jury docket on grounds that Carlson, in an attempt to taint the jury pool, posted a website that broadcast her view of the child's medical condition. The website contained videos that Wollschlager intended to offer as exhibits. On the website, Carlson solicited donations for the child's health care and Carlson's legal expenses. The trial court instructed Carlson to take the website down, but the trial court denied Wollschlager's motion to strike the case from the jury docket.

When the trial concluded, Judge Rucker submitted a charge to the jury in which it was asked whether the joint managing conservator should be replaced with a sole managing conservator and, if "yes, " who should be named sole managing conservator. Next in the charge, Judge Rucker asked the jury, on condition that it answered "No" to the question of whether there should be a sole managing conservator:

(1) whether the joint managing conservatorship should be modified so that one parent has the exclusive right to determine the child's primary residence;
(2) who that parent should be;
(3) whether that parent's right should be limited by a geographic restriction; and
(4) what the geographic restriction should be if the jury chose to impose one.

A supplemental charge instructed the jury that the sole managing conservator's rights would be subject to any limitation imposed by the trial court if it found that the limitation would be in the best interest of the child. Carlson did not object to the submitted charge, and neither Carlson's proposed charge nor the charge submitted to the jury addressed whether a geographic restriction should be imposed on a sole managing conservator's right to determine the primary residence of the child.

After deliberations, the jury found that the previous appointment of joint managing conservators should be replaced with the appointment of a sole managing conservator and named Carlson as the parent who should be appointed as sole managing conservator. Because the jury answered, "Yes, " to the question regarding replacement of the joint managing conservators with a sole managing conservator, it reached none of the remaining questions related to a joint managing conservator's right to determine the child's primary residence.

Through her attorneys, Carlson moved for entry of a final order and asked the trial court to provide written instructions and orders or to schedule a hearing to address the issues remaining before the court, including support, possession and access, and any special orders regarding the child's medical care. Wollschlager requested a hearing on nonjury issues and asked the trial court, among other requests, to designate Midland County as the child's county of residence. Wollschlager sent a letter to Judge Rucker and Clack to notify them of his intent to request a geographic restriction and included caselaw to support his request. Again through her attorneys, Carlson responded to Wollschlager's contentions. The letter was signed by Clack and was written on Clack's law office letterhead.

After Judge Rucker heard evidence regarding the outstanding nonjury issues, he issued a letter ruling in which he restricted Carlson's exclusive right to designate the child's primary residence to Midland County and contiguous counties and ordered that Wollschlager pay 100% of the child's health care expenses. According to the ruling, Judge Rucker had examined the Texas Family Code and relevant caselaw on sole managing conservators and jury trials, and he concluded that the Family Code expressly authorizes courts to impose limitations on the sole managing conservator's exclusive rights, including a geographic restriction on the right to determine the child's residence.

In response to Judge Rucker's ruling, Clack prepared, signed, and filed a motion for judgment to conform to the jury verdict. The motion contained the following:

[Carlson] very respectfully disagrees that a geographic restriction is called for under the facts of this case. However, the fact that the Court prepared a charge that gave the jury a question on geographic restriction to answer only should they bypass Question 1 on Sole Managing Conservator and only if they went to the Question on Joint Managing Conservator, is an ...

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