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Bowling v. Dahlheimer

Court of Appeals of Texas, Fifth District, Dallas

November 7, 2017

WANDA LEE BOWLING, Appellant
v.
LESTER JOHN DAHLHEIMER, JR. AND LESTER JOHN DAHLHEIMER, SR., Appellees

         On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-51274-2015

          Before Justices Lang, Evans, and Schenck

          MEMORANDUM OPINION

          DAVID EVANS, JUSTICE.

         Wanda Lee Bowling appeals from the trial court's final divorce decree. She complains she received inadequate notice of the trial date and a hearing on her second recusal motion. She also challenges rulings on her and Lester John Dahlheimer, Jr.'s competing requests for protective orders against each other, the denial of her recusal motions, the imposition of monetary sanctions against her, certain oral rulings made by the trial court, and the appointment of a receiver to handle the maintenance and sale of certain real property. We affirm the trial court's judgment for the reasons that follow.

         BACKGROUND

         Bowling and Dahlheimer married in October 2004. In March 2015, Bowling filed for divorce.[1] Dahlheimer filed a counterpetition for divorce and the parties later entered into a rule 11 agreement that provided, in part, that both parties were enjoined from going near or within 500 feet of the other party, the residence awarded to the other party, or the place of employment of the other party. In October, Bowling sought a protective order against Dahlheimer asserting he violated the rule 11 agreement by showing up at her church. Dahlheimer responded and filed a counter-application for a protective order. After a hearing at which both parties testified, the trial court granted Dahlheimer a protective order and denied Bowling's request.

         In November, Bowling moved to recuse Judge Piper McCraw as the trial judge and also filed a motion for continuance. The regional presiding judge assigned Judge Richard Davis to hear the recusal motion. A hearing on both motions was held on December 4. The court denied the recusal motion but granted a continuance, resetting the trial date to February 9, 2016.

         The trial date was rescheduled to May 17, 2016 after the trial court granted Bowling another continuance. About two weeks before the May trial date, Bowling filed a third amended petition without leave of court joining Dahlheimer's father as a third-party defendant, alleging he and/or Dahlheimer fraudulently deprived Bowling of her separate property. On May 5, 2016, the trial court heard Bowling's fourth request for a continuance and rescheduled the trial for July 7, 2016. At a June 29, 2016 hearing, the trial court denied Bowling's fifth request for continuance as well as her motions to compel a deposition and substitute party pursuant to rule 152 of the Texas Rules of Civil Procedure.[2] The trial court also instructed the parties on the record to be ready to proceed to trial on July 7.

         Two days before the July 7 trial date, however, Bowling filed a second motion to recuse Judge McCraw. Judge Davis heard and denied the recusal motion on July 7. The case was tried before Judge McCraw, sitting without a jury, immediately following the denial of Bowling's second recusal motion. Bowling did not appear for either the recusal hearing or the trial.[3] The trial court signed a final decree of divorce dissolving the marriage, dividing the marital estate, and appointing a receiver to take charge and possession of the home on Hallmark Drive in Plano. The trial court also signed a take-nothing judgment against Bowling on her third party action against Dahlheimer's father. Bowling, representing herself without an attorney, timely filed this appeal.[4]

         ANALYSIS

         A. Motions for Protective Order

         In her first and second issues, Bowling contends the trial court erred in granting Dahlheimer a protective order against her and denying her motion for a protective order. Specifically, she asserts there was "indisputable evidence [Dahlheimer] is the violent party" and that Dahlheimer provided no evidence to support his claim that she was violent toward him or that violence against him would likely occur in the future. We review challenges to family violence protective orders for legal and factual sufficiency. See In re E.A.K., No. 05-16-00724-CV, 2017 WL 2391722, at *3 (Tex. App.-Dallas June 1, 2017, no pet.) (mem. op.).[5]

         With respect to Bowling's challenge to the protective order granted against her, we may sustain a legal sufficiency challenge only if: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from considering 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 the vital fact. See In re F.K.M., No. 05-11-00276-CV 2012 WL 939271, at *3 (Tex. App.-Dallas Mar. 19, 2012, no pet.) (mem. op.).

         On the other hand, to successfully challenge the legal sufficiency of the trial court's denial of her request for a protective order, Bowling must demonstrate that the evidence established as a matter of law each element necessary for a protective order. See Garcia v. Tautenhahn, 314 S.W.3d 541, 544 (Tex. App.-Corpus Christi 2010, no pet.). In a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. In re F.K.M., 2012 WL 939271 at *3. In reviewing for legal sufficiency, we must also be mindful that the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The fact finder may decide to believe one witness and disbelieve another. Id.

         To be entitled to a protective order under the family code, a party must prove family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. § 85.001 (West 2014). "Family violence" is defined as "an act by a member of a family . . . against another member of the family . . . intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself." Id. § 71.004(1) (West Supp. 2016).

         In the protective order against Bowling, the trial court found that Bowling committed an act of family violence, violated the rule 11 agreement by disturbing the peace of Dahlheimer, that family violence was likely to occur in the future, and that the protective order was necessary and in the best interest of Dahlheimer.

         There was evidence before the trial court that both parties had been physically violent to each other during the marriage. Bowling testified that the last violent event with Dahlheimer was in May 2014 while the two were arguing. She stated Dahlheimer pushed her through the garage door and her head hit the knob and she fell with her face on the ground. Dahlheimer testified that Bowling was very intoxicated during this altercation and she bit through Dahlheimer's lower lip. There was evidence the police responded to Bowling's 9-1-1 call involving this incident. The police incident report indicates Bowling stated she bit Dahlheimer's lip and there was a photograph admitted into evidence of Dahlheimer's bloody lip and chin. At the hearing, however, Bowling denied biting Dahlheimer.

         Bowling also testified that she had recently been made aware that Dahlheimer had been violating the rule 11 agreement by attending her church which she claimed was within 300 feet of her residence. According to Bowling, it was after she saw Dahlheimer at the church on October 11, 2015 that she obtained an ex parte protective order against him. Bowling attempted to get Dahlheimer's attention at church, but when she could not, she took a picture of him and left. She further testified that she had him arrested on October 18 for violating the ex parte order by attending church.

         Dahlheimer testified that he and Bowling had been attending that church since May 2014 and he continued to do so after signing the rule 11 agreement. According to Dahlheimer, because there was only one service, he would always stay far away from Bowling. An email to Bowling from her pastor dated October 13, 2015 indicated that there were many Sundays when the two had sat in different areas of the church.

         Dahlheimer further testified that he was afraid of Bowling and that in September 2014, Bowling purchased a dive knife that she opened in front of him and stated that if he ever "F'd" with her again she would kill him. There was also evidence that in August 2015, Bowling was arrested, but not charged for, bringing a loaded handgun into the courthouse. At the hearing she testified that she was in a hurry and was not cognizant of the fact the ...


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