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In re S.H.

Court of Appeals of Texas, Second District, Fort Worth

February 23, 2017

IN THE INTEREST OF S.H., A CHILD

         FROM THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 14-01640-393

          PANEL: LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.

          MEMORANDUM OPINION[1]

          MARK T PITTMAN JUSTICE.

         In one issue, Appellant K.O. (Father) complains of the denial of his motion for new trial after the trial court granted a post-answer default judgment for Appellee B.H. (Mother). Because we hold that the trial court did not abuse its discretion by denying Father's motion for new trial, we affirm.

         I. Summary of Facts

         A. Father Files Initial Pleadings.

         Mother and Father were involved in a romantic relationship, and she became pregnant by him. They broke up during the pregnancy, and in March 2014, Father's retained counsel filed a petition to adjudicate parentage seeking that Father be named a joint managing conservator (JMC), to restrict the child's primary residence to Denton and contiguous counties, to change the child's last name to his, and appropriate orders for access, allocation of rights and duties, and child support. Father also sought a temporary order allowing him to attend Mother's medical appointments and to have access to the unborn child's medical information.

         B. August 2014 Temporary Orders Set Father's Possession Schedule and Order Him to Enroll in SoberLink.

         In April 2014, Mother and Father stipulated that he was the father of the unborn child. The child, S.H., was born in June 2014. In August 2014, the trial court signed temporary orders naming Father and Mother temporary JMCs; awarding Mother the right to designate S.H.'s primary residence; awarding Father the trial court's standard visitation for a child under the age of three, except for granting possession on Wednesdays and Thursdays from 6:00 p.m. to 8:00 p.m. instead of on Wednesdays and Fridays; ordering him to pay Mother $400 per month in child support; restricting both parents' alcohol consumption; and ordering Father to enroll in SoberLink. In November and December 2014, the couple temporarily reconciled.

         C. August 2015 Temporary Orders Reduce Father's Possession Slightly, Tighten His SoberLink Requirements, Tie His Future Possession to Compliance, and Increase His Child Support.

         In August 2015, the final hearing began. The trial court heard evidence that Father: (1) did not believe he had a problem with alcohol even though he had two prior convictions for driving while intoxicated (DWIs); (2) missed some court-ordered SoberLink tests and tested positive for alcohol on others; (3) missed some visits with S.H.; and (4) was behind on child support but not on his car payments, which Father viewed as equally important as his child support obligation. The trial court granted a continuance because Mother had filed her response to Father's petition and request for temporary orders on March 27, 2014, but had not served it on Father.

         At the termination of the hearing, the trial court ordered:

. That Father participate in SoberLink Recovery Health during all periods of possession;
. That Father submit a breath specimen one hour before the beginning of each period of possession, allowing a 30-minute response period;
. That the period of possession would be forfeited if Father declined the test, missed the test, or had a breath alcohol concentration even as low as .01;
. That Father's periods of possession on Sundays would occur on the first, third, and fourth Sundays of the month (instead of the first, second, third, and fourth);
. That no visitation would occur until SoberLink confirmed that it was providing alerts to both parties, not just to Father;
. That two consecutive failed tests, including declined tests, would result in his possession schedule being surrendered and his possession being supervised by Aaron Robb or someone in his office at Father's expense; and
. That current monthly child support of $570 would be due beginning September ...

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