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Duffey v. Duffey

Court of Appeals of Texas, Fourteenth District

December 7, 2017

ROSALE VICTORIA DUFFEY, Appellant
v.
CURRY PATRICK DUFFEY, Appellee

         On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 09-DCV-173048

          Chief Justice Frost and Justices Brown and Jewell.

          MEMORANDUM OPI NION

          Kem Thompson Frost Chief Justice

         A mother of two children challenges the trial court's final order granting the father's petition to modify the parent-child relationship. The mother asserts that (1) the presiding judge of the trial court erred in signing a final order that conflicted with the prior final order signed by the associate judge who presided over the trial; (2) the associate judge failed to give effect to the father's purported judicial admission that the father sexually abused one of the children, (3) the associate judge reversibly erred in changing the mother from the children's sole managing conservator to a joint managing conservator who does not have the right to designate the children's primary residence; (4) the associate judge abused his discretion in awarding the father reasonable attorney's fees; (5) the mother did not effectively waive her right to appeal the associate judge's judgment after trial to the presiding judge of the district court; and (6) the associate judge reversibly erred in failing to issue the additional findings of fact and conclusions of law requested by the mother. We affirm.

         I. Factual and Procedural Background

         Appellant Rosale Victoria Duffy and appellee Curry Patrick Duffy are the parents of two minor children, Mary and John.[1] Rosale and Curry were divorced in a decree rendered in November 2010. In that decree, the court appointed Rosale as the children's sole managing conservator and Curry as their possessory conservator. The court found that Curry had a history or pattern of committing family violence during the two-year period preceding the filing of the divorce suit or during the pendency of the suit and that awarding Curry access to the children would not endanger their physical health or emotional welfare and would be in their best interest. The trial court further ordered that Curry's periods of visitation with the children be under the supervision of Rosale or one of several other named individuals.

         In August 2012, Curry was having supervised visitation with the children at Rosale's house in Rosale's presence. The following paragraph describes Curry's trial testimony regarding the events of that day.

         Before Curry's visit, Rosale had called him and told him to make sure to ask the children about their glow-light toys. When Curry arrived at Rosale's house for the visitation, the children were very excited to see Curry, and Rosale asked the children to go upstairs to get their glow-light toys so they could show these toys to Curry. The children never before had been excited to show Curry a toy. The children went upstairs, retrieved their glow-light toys, and came downstairs to show them to Curry. Rosale stated that they needed to go into a dark room to see the toys glow, and Rosale suggested that they go into a bathroom. Curry asked if Rosale wanted to go into the bathroom, and Rosale said there was not enough room for her, so only Curry and the children entered the bathroom with the lights turned off. Mary turned on her glow-light toy, but John had trouble turning on his toy. John asked his mother how to turn on the toy. Rosale, who was standing just outside the door, explained to John how to switch on the toy. Mary turned John's toy on, and Curry and the children looked at the lights for about thirty seconds. After that, they left the bathroom, and Curry went into the living room with John, while Rosale went to the kitchen with Mary. Rosale and Mary then entered the living room, and Rosale said that she wanted to tell Curry something that Mary had just told her. Rosale announced that Mary had just said that Curry touched John's penis. Curry was shocked that Mary would say something like that. Rosale told Curry not to worry and that she knew that was not something that Curry would ever do. Curry asked Mary why she would say that. Mary responded that she had not said that. Mary said that she had told Rosale something about a toy, and Mary hid behind Rosale.

         Evidence at trial showed that, in September 2012, Rosale contacted the Texas Department of Family and Protective Services (the "Department") to report this "outcry." In the fall of 2012, Rosale started taking Mary to a therapist. Curry continued with his supervised visitation through the end of March 2013. That month, Mary made an outcry of alleged sexual abuse by Curry to the therapist, and the therapist reported the outcry to authorities. The Department conducted an investigation of this outcry.

         Shortly after this outcry, Rosale initiated this lawsuit by filing a petition to modify the parent-child relationship. Curry filed a counterpetition. Curry testified that he did not have any visitation at all with his children until March 2014, when he began supervised visitation with the children through Guardians of Hope. Evidence at trial showed that Rosale took acts that resulted in Curry not being able to see the children during this one-year period. According to Curry, when he started seeing the children again, their behavior toward him was hostile and different from before. They made growling sounds at him, and would not look him in the eyes. The children told Curry they hated him and never wanted to see him again, and they asked how much longer they had to have these visits.

         Rosale contacted law-enforcement authorities twice regarding Curry's alleged sexual abuse of one of the children. Curry was not arrested or charged with any sexual abuse of the children. Evidence showed that Rosale decided to take the children to a new therapist in December 2014, in violation of an injunction contained in temporary orders. As a result of this action, the new therapist made an additional report to the Department about the same sexual-abuse allegations. Despite various reports and investigations of Curry's alleged sexual abuse of the children, the final result of all of the Department's investigation has been either "Ruled Out" or "Unable to Determine." The Department records admitted into evidence at trial reflect that (1) "Ruled Out, " means that based on the available information, it was reasonable to conclude that the alleged abuse or neglect did not occur; and (2) "Unable to Determine" means that there was insufficient information to conclude whether the alleged abuse or neglect did or did not occur.[2]

         Rosale and Curry entered into an agreement under Texas Rule of Civil Procedure 11 to waive any objection to an associate judge conducting the trial on the merits and to waive the right to appeal the associate judge's rulings and recommendations to the referring court. After Rosale nonsuited her petition to modify, the parties proceeded to a trial on Curry's petition before the associate judge.

         After the bench trial, on November 20, 2015, the associate judge signed an "Order on Motion to Modify." Within thirty days, the associate judge signed a final order in the suit to modify the parent-child relationship. The associate judge found that it was in the children's best interest to modify the conservatorship so that Curry and Rosale are joint managing conservators and Curry has the exclusive right to designate the children's primary residence as well as other exclusive rights. The associate judge ordered this modification, ordered Rosale to pay child support, and ordered Rosale to pay $65, 000 to Curry's attorneys for reasonable attorney's fees and expenses incurred by Curry. The associate judge issued findings of fact and conclusions of law. Though Rosale requested that the associate judge issue additional findings of fact and conclusions of law, the associate judge did not do so.

         II. Issues and Analysis

         Acting pro se, Rosale has perfected and prosecuted this appeal from the trial court's final order.[3]Rosale presents seven appellate issues.

         A. Claimed Error Based on the November 20, 2015 Order

         In her first issue, Rosale asserts that the presiding judge of the trial court erred in signing the final order on December 18, 2015, because that order conflicted with the order the associate judge signed on November 20, 2015. Rosale notes that the presiding judge of the trial court did not preside over the bench trial, and Rosale asserts that by signing the latter order, the presiding judge created two final judgments, in violation of Texas Rule of Civil Procedure 301's requirement that there be only one final judgment in any case, except where it is otherwise specially provided by law. See Tex. R. Civ. P. 301.

         The record reflects that the presiding judge of the trial court did not sign the December 18, 2015 order; rather, the associate judge signed both orders. Presuming for the sake of argument that both orders are final orders and that the latter order conflicts with the former, as Rosale asserts, the associate judge signed the second order while the trial court still had plenary power to modify or vacate the first order, and by signing the second order the associate judge effectively vacated and replaced the first order with the second order. See Tex. R. Civ. P. 329b(d); Urelift Gulf Coast, L.P. v. Bennett, No. 14-13-00949, 2015 WL 495020, at *2 (Tex. App.-Houston [14th Dist.] Feb. 5, 2015, no pet.) (concluding that, by rendering a final judgment that was inconsistent with a prior interlocutory judgment, the trial court necessarily vacated its prior judgment) (mem. op.); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 39-40 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (holding that second judgment vacated first judgment with which second judgment was inconsistent, even though trial court did not refer to first judgment or expressly state an intention to vacate the prior judgment in the second judgment). Thus, there is only one final order in this case, and the associate judge did not violate Rule 301 as Rosale asserts. We overrule Rosale's first issue.

         B. Claimed Error Based on an Alleged Judicial ...


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