Court of Appeals of Texas, Twelfth District, Tyler
from the 442nd District Court of Denton County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Gadekar appeals the trial court's final decree of
divorce. On appeal, he presents eight issues. We affirm.
Gadekar married Smita Zankar on January 30, 2010, and they
are the parents of one child, A.G. On November 20, 2012,
Smita filed an original petition for divorce, requesting that
Niranjan be ordered to pay child support, and that she be
awarded a disproportionate share of the parties' estate.
Niranjan filed an answer and counter-petition for divorce,
requesting that A.G.'s residence be restricted to Denton
County, Texas, and that Smita be ordered to pay child
support. In their original and amended petitions or
counterpetitions, each parent at one time requested
appointment as sole managing conservator of A.G. or
appointment as joint managing conservators. Each parent also
requested appointment as the parent having the exclusive
right to determine A.G.'s primary residence.
jury trial, the jury found that grounds existed for a
divorce, and that Smita should be appointed sole managing
conservator. Further, the jury determined the parties'
separate property. In its decree of divorce, the trial court
signed a judgment in accordance with the jury's verdict,
granted the parties a divorce, and appointed Smita as sole
managing conservator of A.G. and Niranjan as possessory
conservator. The trial court also ordered that Niranjan
participate in parenting counseling and therapy, and that he
not exercise possession of nor access to A.G. if he failed to
initiate and maintain regular participation in such
counseling and therapy. Otherwise, the trial court granted
Niranjan a schedule of possession of A.G. The trial court
also ordered that Niranjan pay child support in the amount of
$1, 208.32 per month to Smita. Finally, the trial court
awarded separate property to the parties in accordance with
the jury's determinations, and divided the parties'
community property estate. Niranjan filed an amended request
for findings of fact and conclusions of law on May 4, 2016.
On May 24, the trial court filed findings of fact and
conclusions of law. This appeal followed.
fifth issue, Niranjan argues that the trial court abused its
discretion by denying his motion for continuance.
Rule of Civil Procedure provides that a motion for
continuance shall not be granted "except for sufficient
cause supported by affidavit, or by consent of the parties,
or by operation of law." Tex.R.Civ.P. 251. The denial of
a motion for continuance is reviewed under an abuse of
discretion standard. Garner v. Fidelity Bank, N.A.,
244 S.W.3d 855, 858 (Tex. App.-Dallas 2008, no pet.). The
denial will be reversed only if the trial court's action
was arbitrary, unreasonable, or without reference to any
guiding rules and principles. Id. (citing BMC
Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 800
as alleged here, the ground for a continuance is the
withdrawal of counsel, the movant must show that the failure
to be represented at trial was not due to his own fault or
negligence. Villegas v. Carter, 711 S.W.2d 624, 626
(Tex. 1986); Harrison v. Harrison, 367 S.W.3d 822,
827 (Tex. App.-Houston [14th Dist.] 2012, pet. denied). The
"absence of counsel will not be good cause for a
continuance or postponement of the cause when called for
trial, except it be allowed in the discretion of the court,
upon cause shown or upon matters within the knowledge or
information of the judge to be stated on the record."
Tex.R.Civ.P. 253. When considering a motion for continuance,
the trial court may take into account the entire procedural
history of the case. See Ruiz v. Ruiz, No.
02-14-00047-CV, 2014 WL 4458952, at *3 (Tex. App.-Fort Worth
Sept. 4, 2014, pet denied) (mem. op.); Qurashi v.
Jabeen, No. 14-12-00858-CV, 2013 WL 2644182, at *3 (Tex.
App.-Houston [14th Dist.] June 11, 2013, pet. denied) (mem.
Niranjan argues that his motion for continuance should have
been granted because his attorney withdrew approximately
forty days before trial.
the course of this case, Niranjan has had five attorneys of
record over almost four years of litigation. His first
attorney withdrew after approximately two and one-half
months, and his second attorney withdrew after approximately
one year and four and one-half months. However, his third,
fourth, and fifth attorneys withdrew after twenty-eight days,
thirty-two days, and thirty-eight days, respectively.
According to his third and fourth attorney, "[g]ood
cause" existed for withdrawal because Niranjan no longer
wished to retain the attorney or Niranjan had not cooperated
with counsel. His fifth attorney's motion for withdrawal
stated that "[g]ood cause" existed because he was
"unable to effectively communicate with [Niranjan] in a
manner consistent with good attorney-client relations."
Moreover, he said, his "relationship with [Niranjan]
made further representation untenable because attorney and
client [could not] agree on anything regarding the
prosecution of this case." The trial court granted the
fifth attorney's motion to withdraw on February 17, 2016,
over a month before the jury trial.
filed a motion for continuance on March 16, 2016, requesting
the continuance to secure trial counsel. At the pretrial
conference on his motion, Niranjan stated that he made
several attempts to hire an attorney, including an attorney
who agreed to represent him for only one day. According to
Smita's attorney, he had three professional expert
witnesses scheduled to testify during trial, and out-of-state
witnesses who purchased airline tickets to travel and testify
on a certain date. The trial court stated that there had been
settings and continuances for three and one-half years, that
Niranjan received one previous continuance, that there was
"absolutely no reason to give another continuance,
" and that there was "no reason to drag on the
litigation." The trial court denied Niranjan's
motion for continuance.
evidence adduced at the hearing, the last three
attorneys' reasons for withdrawing, and the trial
court's consideration of the procedural history of the
case supports a conclusion that Niranjan's failure to be
represented at trial was due to his own fault or negligence.
See Villegas, 711 S.W.2d at 626; Ruiz, 2014
WL 4458952, at *3; Qurashi, 2013 WL 2644182, at *3.
Therefore, the trial court did not abuse its discretion by
denying Niranjan's motion for continuance. We overrule
Niranjan's fifth issue.
third issue, Niranjan argues that the trial court abused its
discretion by failing to allow the parenting facilitator to
testify at trial, and in excluding the parenting
facilitator's email discussing attempts by the parties to
settle the case.
court's ruling on the admissibility of evidence is
reviewed under an abuse of discretion standard. Caffe
Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). A
trial court abuses its discretion when it acts without regard
to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). If
the ruling is within the zone of reasonable disagreement, an
appellate court will not disturb it. See Burden v.
State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A
successful challenge to a trial court's evidentiary
rulings requires the complaining party to demonstrate that
the judgment turns on the particular evidence excluded or
admitted. Interstate Northborough P'ship v.
State, 66 S.W.3d 213, 220 (Tex. 2001).
court shall specify the duties of a parenting facilitator in
the order appointing the parenting facilitator. Tex. Fam.
Code Ann. § 153.6061(a) (West 2014). According to the
Texas Family Code, a parenting facilitator shall submit a
written report to the court and to the parties as ordered by
the court. Id. § 153.6081 (West 2014). This
report may include a recommendation from the facilitator
described by Section 153.6082(e), but it shall be made only
to the parties and attorneys. Id. Under Section
153.6082(e), the parenting facilitator may make a
recommendation to implement or clarify provisions of an
existing court order that are consistent with the substantive
intent of the court order and in the best interest of the
child. Id. § 153.6082(e) (West 2014). However,
the report may not include recommendations regarding the
conservatorship of or the possession of or access to the
child who is the subject of the suit. Id. A
parenting facilitator may testify in any proceeding relating
to or arising from the duties of the parenting facilitator,
including the basis for any recommendation made to the
parties that arises from the duties of the parenting
facilitator. Id. § 153.6083(a) (West 2014).
argues that the trial court abused its discretion in striking
the parenting facilitator's testimony. In the order
appointing the parenting facilitator, the trial court
delineated the facilitor's duties,  and ordered that
(1) the parenting facilitator should submit a written report
to the court and to the parties, and (2) the report should
make recommendations pursuant to Section 153.6081 of the
Texas Family Code, including a statement of whether the
parenting facilitation should continue. In a pretrial
hearing, the trial court excluded the facilitator from
testifying. In his brief, Niranjan argues that the trial
court's error caused the rendition of an improper
judgment because it resulted in, among others, the
appointment of Smita as sole managing conservator and awarded
him less than standard possession. In effect, he contends
that the trial court should have allowed the parenting
facilitator to testify regarding her recommendations as to
the conservatorship or possession of or access to the child.
a parenting facilitator may testify, her testimony is limited
to a proceeding relating to or arising from the duties of the
parenting facilitator, including as to the basis for any
recommendation made to the parties that arises from the
duties of the parenting facilitator. See id. In this
case, none of the parenting facilitator's duties, either
by order of the trial court or by statutory authority,
included a recommendation regarding the conservatorship of or
possession of or access to the child. In fact, statutes
explicitly forbid the parenting facilitator from making such
recommendations. See id. §§ 153.6081 &
Niranjan cites two cases for the proposition that a parenting
facilitator could testify at trial. In In re A.P.M.,
No. 05-10-00679-CV, 2012 WL 2088007, at *4 (Tex. App.- Dallas
June 11, 2012, no pet.) (mem. op), and In re N.W.,
No. 02-12-00057-CV, 2013 WL 5302716, at *3 (Tex. App.-Fort
Worth Sept. 19, 2013, no pet.) (mem. op.), the parenting
facilitators testified during trial regarding communication,
conflict, and relationships between the parties and their
children. See In re A.P.M., 2012 WL 2088007, at *4;
In re N.W., 2013 WL 5302716, at *3. Neither
parenting facilitator gave a recommendation to the court
regarding managing conservatorship or possession of or access
to the children. Thus, neither case law, statutory authority,
nor the parenting facilitator's duties allowed the
parenting facilitator to testify regarding her
recommendations as to the conservatorship or possession of or
access to the child. Accordingly, Niranjan failed to
establish that he was harmed by the trial court's alleged
error in striking the facilitator's testimony.
Niranjan contends that the trial court abused its discretion
by excluding the parenting facilitator's email to a third
party, which discussed the parties' attempts to settle
the case. At trial, Niranjan offered Exhibit 3, which he
stated was the parenting facilitator's
"recommendation, " and he argued that it was
relevant to conservatorship and possession issues. The
excluded exhibit is an email from the paralegal of one of
Niranjan's former attorney's to Niranjan, which
forwarded a copy of an email to the mediator in the case, and
included a forwarded email from the parenting facilitator to
the parties' attorneys and amicus attorney. Smita
objected, stating that the trial court already excluded the
facilitator's testimony. We previously determined that
the parenting facilitator's recommendation relating to
conservatorship or possession of the child was prohibited at
trial. As such, Niranjan could not attempt to offer the
parenting facilitator's report or recommendation through
emails from third parties, none of which were available to
testify at trial. See Tex. R. Evid. 801
("Hearsay" is a statement that the declarant does
not make while testifying at trial and that a party offers in
evidence to prove the truth of the matter asserted.). Thus,
the trial court did not abuse its discretion by excluding the
we overrule Niranjan's third issue.
fourth issue, Niranjan contends that the trial court abused
its discretion by excluding three exhibits containing emails
and instant messages.
to admit evidence at trial is a preliminary question to be
decided by the court. Tex. R. Evid. 104(a). Only relevant
evidence is admissible. Tex. R. Evid. 402. Relevant evidence
is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence. See Tex. R. Evid. 401.
Evidence not properly authenticated is irrelevant, and
authentication is a "condition precedent" to
admissibility. Tex. R. Evid. 901(a); In re J.P.B.,
180 S.W.3d 570, 575 (Tex. 2005).
previously stated, we review a trial court's ruling on
the admissibility of evidence under an abuse of discretion
standard. Caffe Ribs, Inc., 487 S.W.3d at 142;
Downer, 701 S.W.2d at 241-42.
complains that the trial court abused its discretion in
denying admission of three exhibits, Exhibits 12, 13, and 14.
We will discuss each exhibit individually.
12: At trial, Niranjan offered Exhibit 12 for admission
into evidence, and identified the exhibit as consisting of
emails between him and Smita. However, he admitted, only
"part[s]" of the exhibit included emails between
him and Smita, and requested that the trial court review the
portion of the exhibit involving emails between the parties.
Smita's attorney objected as to hearsay, and the trial
court sustained Smita's objection. In his brief, Niranjan
again states that the emails were "largely between the
parties although there were sections wherein information was
passed along to third parties."
that the majority of the 231 page exhibit appears to be
emails between the parties. However, portions of the exhibit
contain emails between Niranjan and the unidentified email
addresses of at least seven other persons, some of whom
appear to be former legal counsel. The trial court need never
sort through challenged evidence in order to segregate the
admissible from the excludable. In re S.M., 207
S.W.3d 421, 424 (Tex. App.-Fort Worth 2006, pet. denied)
(citing Jones v. State, 843 S.W.2d 487, 492 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 1035, 113
S.Ct. 1858, 123 L.Ed.2d 479 (1993)). If evidence is offered
and challenged, which contains some of each, the trial court
may safely admit it all or exclude it all, and the losing
party, no matter who he is, will be made to suffer on appeal
the consequences of his insufficiently specific offer or
objection. Id. When evidence is both admissible and
inadmissible, a party may not complain on appeal unless the
admissible evidence was specifically offered. See Speier
v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981).
Here, it was not the trial court's responsibility to sort
through this voluminous record to determine which emails were
admissible and which were inadmissible. See In re
S.M., 207 S.W.3d at 424. Thus, Niranjan failed to
preserve his complaint regarding the trial court's
exclusion of Exhibit 12. See Speier, 616 S.W.2d at
13: At trial, Niranjan offered Exhibit 13 for admission,
and stated that it contained "chat" transcripts, or
instant messages, between the parties. Smita's attorney
objected to the exhibit as to hearsay, and the trial court
sustained the objection. Later, Niranjan made an offer of
proof, stating that he was "authenticating" the
instant messages and that he was familiar with the email
addresses. In his brief, Niranjan stated that the instant
messages were not hearsay, but an ...