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In re S.V.

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2017

IN THE INTEREST OF S.V. AND S.V., CHILDREN

         On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-04-11968

          Before Justices Bridges, Fillmore, and Boatright.

          OPINION ON REHEARING

          ROBERT M. FILLMORE, JUSTICE.

         Before the Court is appellant Father's August 17, 2017 Motion for Rehearing. We deny the motion. On our own motion, we withdraw our opinion issued August 14, 2017, and vacate our judgment of that same date. The following is now the opinion of the Court.

         Father appeals the trial court's May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc (the 2016 Order) naming appellee Mother sole managing conservator of their two children, S.V. and S.V.[1] In his first issue, Father asserts this case should be remanded for a new trial due to missing trial court exhibits. In his remaining seven issues, Father contends the trial court erred by ordering Father to pay Mother's attorney's fees; ordering a possession schedule that gave the children discretion to decide whether Father would have possession; ordering Father to add a physician to his health insurance plan who was not part of that plan's network; ordering injunctive relief against Father; ordering an anti-suit injunction against Father that restricts his access to the courts; denying pretrial discovery and striking Father's pleadings due to hybrid representation; and ordering child support arrearages and post-trial discovery that contradict the parties' mediated settlement agreement. We affirm in part and reverse in part.

         Background

         This is a suit affecting the parent-child relationship (SAPCR). In June 2005, the parties divorced and were named joint managing conservators of the children, with Father having expanded standard visitation. A March 22, 2012 order of the trial court (the 2012 Order) appointed Mother sole managing conservator and Father possessory conservator of the children. This appeal arises from a modification of the 2012 Order.

         The catalyst for the proceedings that resulted in the modification was the events of Father's Day of 2013. Father had possession of the children that day. When his older child received a text message originating from an unknown number, Father yelled at her not to answer and reached for the phone. In the process, he struck her across her face. The contact hurt the child and Father as well-he had a broken finger at the time-and he reacted by calling the child a "bitch" and saying he "hoped she died of cancer." Father apologized. Afterwards, the children worked together and made a video for Father as a surprise. Testimony indicates the video showed the children laughing and singing a song to Father soon after the incident in which he had struck the older child. Father took a photograph of a white board on which the children had written lyrics of the song they had composed. According to Mother, when the children returned to her home that night and told her what had happened, they were extremely distraught.

         On July 2, 2013, Mother filed an Ex Parte Emergency Motion for Extraordinary Relief and for Temporary Restraining Order and Order Setting Hearing for Temporary Orders, seeking to restrict all access to the children by Father. The trial court temporarily abated Father's access, and then, on August 9, 2013, Mother filed a Petition to Modify Parent-Child Relationship, seeking to make the abatement permanent. Father subsequently filed a Counter-Petition to Modify Parent-Child Relationship on May 23, 2014.

         In November 2015, a jury heard the issues of whether the parents' status should be changed and attorney's fees should be awarded. The parties presented not only evidence of the 2013 Father's Day events, but also evidence of the troubled relationships between the parents and between Father and the children since 2012. The evidence addressed Father's confrontations with the children's teachers and coaches, his problematic dealings with family counselors, and the frustrations of the children due to the controlling nature of Father's interactions with them. The older child testified she was not willing to continue a relationship with Father. The younger child did not testify at trial.

         The jury found the 2012 Order should not be modified as to the parents' status, thus maintaining Mother as sole managing conservator and Father as possessory conservator of the children. The jury also found Mother's reasonable and necessary attorney's fees incurred or to be incurred were $20, 000 in the trial court, $10, 000 on appeal to the court of appeals, and $10, 000 to the Supreme Court of Texas. On May 4, 2016, the trial court signed the 2016 Order, adopting the jury's findings and setting forth the court's orders concerning possession, child support, and all other relevant SAPCR matters. The trial court ultimately denied Father's amended motion for new trial, and Father filed this appeal.

         Missing Exhibits

         When Father filed his notice of appeal and requested the reporter's record, he learned the record did not contain two trial court exhibits: the Father's Day video and photograph. He filed a motion for new trial in this Court, relying on Texas Rule of Appellate Procedure 34.6(f), which would entitle him to another trial if, as relevant to this case: (1) he timely requested the reporter's record; (2) a significant exhibit was lost or destroyed through no fault of his own; (3) the lost exhibit was necessary to the resolution of his appeal; and (4) the lost evidence could not be replaced by agreement of the parties or with a copy determined by the trial court to duplicate the original evidence accurately and with reasonable certainty. See Tex. R. App. P. 34.6(f). We ordered the trial court to "conduct a hearing to determine" each of the appellate rule 34.6(f) requirements and to file its "written findings" with this Court.

         In compliance with our order, the trial court found, after an evidentiary hearing, that Father timely requested the reporter's record, the video and the photograph had been lost or destroyed due to no fault of Father, the video and the photograph were not necessary to the appeal's resolution, and the video and photograph could not be replaced by agreement of the parties or with a copy that accurately duplicated with reasonable certainty the original exhibits. Father contested in this Court the trial court's finding concerning necessity of the missing exhibits to resolution of the appeal and again asked this Court to grant him a new trial. We ordered the parties to address in their briefs whether the video and photograph are necessary to the resolution of the appeal.

         In his first issue, Father contends this Court cannot adequately review his appellate complaints in the absence of the lost exhibits. Specifically, he argues that in order to determine whether the trial court has abused its discretion in this case, we must determine whether its orders are supported by sufficient evidence and whether they are in the best interest of the children. In both instances-sufficiency and best interest-Father asserts we are required to review the entire record, and the absence of the missing exhibits prevents us from doing so. Thus, he contends, he is entitled to a new trial.

         Mother responds the evidence is not necessary to resolution of the appeal because there is no disagreement about what is depicted in the video and photograph. She points to testimony from both Father and the older child about the video and its contents. And she argues the exhibits were of insignificant probative value, did not sway the jury, and should be disregarded. Father is not entitled to a new trial unless all four circumstances of appellate rule 34.6(f) are present. See Haynes v. Haynes, No. 04-15-00107-CV, 2017 WL 2350970, at *3 (Tex. App.- San Antonio May 31, 2017, no pet. h.) (mem. op.). Further, as appellant and new-trial movant, Father had the burden of establishing the missing exhibits are necessary to the appeal's resolution. Gaston v. State, 63 S.W.3d 893, 899 (Tex. App.-Dallas 2001, no pet.). The requirement that the missing portion of the record "is necessary to the appeal's resolution" is a harm analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999); Haynes, 2017 WL 2350970, at *3. "If the missing portion of the record is not necessary to the appeal's resolution, then the loss of that portion of the record is harmless under the rule and a new trial is not required. Issac, 989 S.W.2d at 757.

         We review a trial court's findings under appellate rule 34.6(f), including a finding that a missing portion of the record is necessary to the appeal, for an abuse of discretion. Johnson v. State, No. 13-16-00023-CR, 2017 WL 1281391, at *1, 4 (Tex. App.-Corpus Christi Apr. 6, 2017, no pet.) (mem. op.);[2] see also Estate of J.T. Neal v. River Inn Ass'n of Unit Owners, No. 14-10-00307-CV, 2011 WL 238340, at *1-2 (Tex. App.-Houston [14th Dist.] Jan. 25, 2011, no pet.) (per curiam) (mem. op.) (concluding, based on trial court's findings that a record was timely requested, significant portions of the record had been lost or destroyed, missing portions of record were necessary to appeal, and missing portions or record could not be replaced by agreement, that appellants were entitled to new trial pursuant to appellate rule 34.6(f)); In re N.T.H., No. 02-02-00283-CV, 2003 WL 21284138, at *1 (Tex. App.-Fort Worth June 5, 2003, no pet.) (per curiam) (mem. op.) (same).[3] A trial court abuses its discretion when it acts without reference to any guiding rules or principles. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.-Dallas 2006, pet. denied) (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.-Houston [14th Dist.] 1999, no pet.)).

         In this case, both Father and the older child testified at trial and addressed the content of the missing video and photograph. Father's counsel played the video for the jury, then asked Father whether he coerced the children into making the video. Father answered, "No, I did not. They surprised me. They told me to stay downstairs; they composed the video of a song upstairs on the white board. And then, they suddenly came down and said, get your camera we've got something for you." Counsel then asked Father a general question about the children's moods, and, after Father's answer, asked him, "Would you be surprised if just a couple of hours after that video recording they're throwing themselves on the floor at their mother's house saying they hate you and never want to see you again?" Father answered that he did not understand why they would have done that.

         On direct examination, Father's counsel asked the older child whether Father had apologized for hitting her in the face on Father's Day 2013. She said he did apologize. Counsel asked whether the children did anything to celebrate Father's Day with him after he apologized. The child answered, "Well, yeah, we did. Afterwards, we made a video. It was common for us to make videos at his house like singing to him for Father's Day. We did that after that whole incident happened. I was just so relieved that it was over, I guess. . . . I guess his anger was done with. I was just trying to keep him happy, I guess."

         On redirect examination by different counsel, the child testified about the content of the missing photograph. The child said the photograph showed lyrics of the song the children performed for Father, and the lyrics included the words, "we love you." The child also testified the children were smiling and laughing with each other when they performed the song, but that she did not want to have another Father's Day like the one in 2013.[4]

         The dissent would require a new trial unless the missing exhibits are duplicative, cumulative, or illustrative of other evidence. We do not read rule 34.6(f) so narrowly. See Issac, 989 S.W.2d at 757 (disagreeing with contention that "harm analysis cannot apply because an incomplete record, by virtue of its incompleteness, does not contain the data necessary to determine whether harm has occurred"); Landry's Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 437 (Tex. App.-Dallas 2007, pet. denied) (determining missing portion of record was not essential to resolution of appeal because it did not concern any issue raised by appellant). Indeed, determining an appellant bringing a sufficiency challenge in a civil case is entitled to a new trial solely because any portion of the record is missing would eviscerate the appellate rule 34.6(f) requirements that the missing portion be significant and be essential to the resolution of the appeal. See Issac, 989 S.W.2d at 757 ("Although the lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent portions are necessary to the appeal's resolution, an automatic rule of reversal is not justified.").

         The testimony by Father and the child sufficiently informs us as to the content of the video and the photograph. We need not have a word-for-word transcription of the lyrics of the song or a video of the children singing to understand what these exhibits showed and the purpose for which they were offered by Father. Simply put, the record is adequate without the exhibits to allow us to analyze the legal and factual sufficiency of the evidence in considering whether the trial court abused its discretion by rendering the 2016 order.[5] Accordingly, we conclude the trial court did not abuse its discretion by finding the missing exhibits are not necessary to the resolution of Father's appeal. See Tex. R. App. P. 34.6(f)(3); see, e.g., First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 617 (Tex. App.-Corpus Christi 1993, writ denied) ("The witness's testimony is fully and accurately reflected in the record; we do not therefore find the drawings merely illustrating that testimony dispositive to our analysis of the case."); Cox v. Six Flags Over Tex., Inc., No. 05-97-00545-CV, 2000 WL 276894, at *3 (Tex. App.-Dallas Mar. 15, 2000, no pet.) (not designated for publication) (missing exhibit containing interrogatory and answer that were read into record was "not essential to the record or appeal because it would duplicate the testimony in the record"). Therefore, Father has failed to establish he was harmed by their loss. See Issac, 989 S.W.2d at 757; Dunn v. Bank-Tec S., 134 S.W.3d 315, 330 (Tex. App.-Amarillo 2003, no pet.).

         Because Father failed to carry his burden of establishing the missing exhibits are necessary to the appeal's resolution, see Gaston, 63 S.W.3d at 899, we deny his motion for new trial and resolve his first issue against him.

         Attorney's Fees

         In his second issue, Father challenges the legal and factual sufficiency of the evidence supporting the jury's award of attorney's fees to Mother. The jury found that Mother reasonably and necessarily incurred $20, 000 in attorney's fees in the trial court and that she would reasonably and necessarily incur fees of $10, 000 for representation both in this Court and in the supreme court if appeals were taken.

         An attorney's fees award in a suit affecting the parent-child relationship lies within the sound discretion of the trial court. Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (citing Tex. Fam. Code Ann. § 106.002 (West 2014)). In family law cases, legal and factual sufficiency challenges are not independent grounds of reversible error; instead, they constitute relevant factors that aid in assessing whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied). Therefore, we consider first whether the trial court had sufficient evidence upon which to exercise its discretion, and then whether it erred in its application of that discretion. In re Marriage of C.A.S., 405 S.W.3d 373, 383 (Tex. App.-Dallas 2013, no pet.).

         In determining the reasonableness of an award of attorney's fees, the court considers the time spent by the attorney on the case, the nature of the attorney's case preparation, the complexity of the case, the experience of the attorney, and the prevailing hourly rates. See In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.-Dallas 2007, no pet.); Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.-Dallas 2005, no pet.). But evidence on each factor is not necessary to determine a reasonable award. In re M.A.N.M., 231 S.W.3d at 567. The trial court may also consider the entire record and the common knowledge of the participants as lawyers and judges in making its determination. Sandles, 163 S.W.3d at 838; Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.-Amarillo 2002, no pet.).

         Mother's attorney, Stephen Skinner, testified he had been licensed to practice law in Texas since 1994. According to Skinner, he was hired approximately one year before his testimony, and he had attended thirty-nine hearings on the case during that time, more than he had ever experienced in his many years of practice. He testified further that his contract with Mother called for her to pay his reasonable and necessary fees at a rate of $250 an hour, and that he was familiar with fees charged by attorneys in the North Texas area in family law cases. Skinner described the activity in the case as "spiraled off the charts, " and asserted he had invested seventy-two and one-half hours through trial. Along with preparing for and attending the many hearings, he had responded to discovery from Father and from Father's attorney (including three requests for production, a request for disclosure, and interrogatories), attended Mother's deposition and the mediation, and oversaw voluminous communications with Father and his attorneys. He testified he had produced to Father an invoice through July of 2015, acknowledging that portions of the invoice were redacted. Estimating his time for post-trial motions and orders, Skinner sought an award compensating him for seventy-six and one-half hours. He testified further that he had incurred costs of $565. In sum, Skinner requested an award of $19, 690 for trial-court fees and costs. He also asked for fees of $10, 000 each for successful appeals to this Court and to the supreme court.

         Father argues Skinner's testimony is vague and provides no specific information concerning individual tasks that he undertook on behalf of Mother. He also complains Skinner's invoice is so heavily redacted that he cannot glean any information concerning work actually performed. He contends Skinner failed to specifically state the tasks he performed were reasonable and necessary or that his hourly rate was reasonable. As to the request for appellate attorney's fees, Father complains Skinner's testimony contained no supporting detail, but was simply a request for amounts certain.

         Skinner testified concerning the total amount of time he spent on the case, the extraordinary number of hearings he was required to prepare for and attend, his twenty-two years of experience-primarily in family law-in matters across North Texas, and the hourly fee Mother agreed to pay for reasonable and necessary work. His testimony was not contradicted by any other witness and was clear, positive, direct, and free from contradiction. See In re Moore, 511 S.W.3d 278, 288 (Tex. App.-Dallas 2016, no pet.) (testimony from party's attorney about fees will be taken as true as matter of law if not contradicted by any other witness and is clear, positive, direct, and free from contradiction). We conclude Skinner offered sufficient reliable evidence for the trial court-possessing the knowledge of a family court judge-to evaluate adequately the jury's findings. Finally, we discern no abuse of discretion in the trial court's application of its discretion by awarding Mother attorney's fees in accordance with the jury's verdict.

         We resolve Father's second issue against him.

         Father's Right to Possession of Children

         In his third issue, Father contends the trial court erred by ordering a possession schedule that gives the children complete control over his access to them. We review a trial court's modification of a parent's possession of a child for an abuse of discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.-Dallas 2004, no pet.). The best interest of the child must always be the primary consideration of the court in determining issues of conservatorship and possession. Id. at 755.

         The 2016 Order provides Father "shall have the right to possession of the child only at such times as are agreeable to the child or children." In addition, Mother's "obligation to surrender the children to [Father] shall be conditioned upon the children's expressed desire for [Father] to exercise any such possession period." Should the children express such a desire, Father is granted possession for three hours, on the first and third Saturdays of the month, in a public place. The time and place of Father's possession is to be determined by the children. Father argues this order is unenforceable, improperly restricts his access to the children, and represents an improper delegation of the trial court's authority to the children.

         Father relies upon a series of cases in which one parent has been given complete control over possession of children by the other parent. See, e.g., In re Marriage of Collier, 419 S.W.3d 390, 398-99 (Tex. App.-Amarillo 2011, pet. denied) (court's possession order provides father's "visitation with the child shall be at the discretion of [mother]"). Courts have concluded that giving one parent sole authority over the other parent's possession of a child can effectively deny access to the child. In re A.P.S., 54 S.W.3d 493, 498 (Tex. App.-Texarkana 2001, no pet.). Moreover, placing all control over possession in one parent's discretion leaves the other parent without the remedy of contempt if possession is denied. Id. Father argues the trial court thus impermissibly delegated its authority to fashion a possession schedule to children who may simply refuse to see him.

         Mother points to the first factor in the often-cited Holley test, which instructs the trial court to consider the desires of the child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (identifying non-exclusive list of nine factors when considering best interest of child in parental termination cases).[6] But she identifies no legal authority, and we have found none, that takes consideration of a child's desires to the extreme of granting that child-no matter how mature- complete discretion over possession by a parent.

         The trial court was required to appoint Father as possessory conservator unless it found the appointment was not in the best interest of the children and Father's possession or access would endanger the physical or emotional welfare of the children. Tex. Fam. Code Ann. § 153.191 (West 2014). Although it is the public policy of Texas to encourage frequent contact between child and parent, id. § 153.251(b), the trial court may impose restrictions on a parent's possession or access to a child, id. § 153.193. Those restrictions, however, may not exceed what is necessary to protect the best interest of the child. Id. If the trial court determines the standard possession order is not appropriate for a possessory conservator, it has two options: (1) restrict possession or access in a way that eliminates any danger to the physical or emotional welfare of the child; or (2) deny possession and access if it is not in the best interest of the child. In re Walters, 39 S.W.3d 280, 286 & n.2 (Tex. App.-Texarkana 2001, no pet.). "[C]omplete denial of access should be rare." Id. at 287. And when a trial court intends to deny possession or access, the denial "should be ordered in plain, unambiguous language." Id. at 288.

         The trial court ordered a possession schedule allowing Father possession of the children for three hours, every other Saturday of the month, and limited the access to a public place. The trial court appears to have used this restricted access to minimize concerns of physical or emotional danger to the children. However, by placing this restricted access entirely within the control of the children, the trial court created the potential for a denial of all access and gave Father no ability to enforce the order by contempt. We conclude this was an abuse of the trial court's discretion.

         We resolve Father's third issue in his favor and reverse the portion of the 2016 Order addressing Father's possession and access to the children. We remand the case in part and instruct the trial court to sign a custody order consistent with this opinion that either articulates appropriate times and conditions for Father's access to the children or, should the evidence support such a decision, completely bars him from access to the children.

         Impossibility of Performance

         In his fourth issue, Father contends the trial court erred by ordering him to add a physician to his health insurance plan who is not part of the plan's network. On November 2, 2015, the trial court granted Mother's request to add the children's physician, Dr. Darla J. Kincaid, as an authorized provider on Father's BlueCross BlueShield health insurance plan. The trial court ordered both Mother and Father to "cooperate fully with this addition and changes to [Father's] insurance plan" and that the changes be made within three business days of the entry of the order.[7]

         At trial, Mother testified that, when she took the children to "the pediatrician who was on the insurance, " she was told she needed "to call the insurance company and put their pediatrician who was Dr. [Kincaid] on the list. They say that Dr. [Kincaid] was their pediatrician otherwise the insurance wouldn't cover it." Mother asked Father to "do that, " but Father refused, stating she needed to use his physician. Mother was required to "get an order for him to put their pediatrician on the insurance." Father admitted that two days before trial, the trial court ordered him to put Dr. Kincaid on his plan. He testified he "went on the website" to add Dr. Kincaid to his healthcare insurance plan, but could not find her listed as one of the doctors on the website. Father did not call BlueCross BlueShield to discuss whether Dr. Kincaid could be added to Father's healthcare insurance plan.

         In the 2016 Order, the trial court required Father to "add [Dr. Kincaid] to his BlueCross BlueShield or current healthcare insurance plan that provides medical insurance for the children." Father argues it is impossible for him to add Dr. Kincaid to his health insurance plan because she is not a member of the provider network.

         There was evidence at trial that Dr. Kincaid was "on the insurance" and, therefore, part of Father's healthcare plan's provider network. Father, however, refused to cooperate in naming Dr. Kincaid as the children's primary care physician because he preferred the children be seen by his own physician. Although Father testified he could not find Dr. Kincaid's name on the BlueCross BlueShield website, he admitted he had not called the company for assistance in having Dr. Kincaid named as the children's primary care physician.

         There was conflicting evidence at trial regarding whether Dr. Kincaid was included in Father's healthcare plan's provider network. When the testimony of witnesses is conflicting, we will not disturb the credibility determinations made by the trial court as the fact finder. Syed v. Masihuddin, No. 01-16-00071-CV, 2017 WL 2180718, at *7 (Tex. App.-Houston [1st Dist.] May 18, 2017, no pet.); see also In re S.C., No. 05-15-00873-CV, 2016 WL 4010911, at *3 (Tex. App.-Dallas July 25, 2016, no pet.) (mem. op.). Further, we presume the trial court resolved any conflict in favor of its judgment. Syed, 2017 WL 2180718, at *7. On this record, we cannot conclude that Father established it was impossible for him to comply with the trial court's order.

         We resolve Father's fourth issue against him.[8]

         Injunctive ...


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