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Gadekar v. Zankar

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018

NIRANJAN GADEKAR, APPELLANT
v.
SMITA ZANKAR, APPELLEE

          Appeal from the 442nd District Court of Denton County, Texas (Tr.Ct.No. 2012-40948-362)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice.

         Niranjan Gadekar appeals the trial court's final decree of divorce. On appeal, he presents eight issues. We affirm.

         Background

         Niranjan 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.

         After a 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.

         Motion for Continuance

         In his fifth issue, Niranjan argues that the trial court abused its discretion by denying his motion for continuance.

         Applicable Law

         Texas 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 (Tex. 2002)).

         When, 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. op.).

         Analysis

         Here, Niranjan argues that his motion for continuance should have been granted because his attorney withdrew approximately forty days before trial.

         During 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.

         Niranjan 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.

         The 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.

         Parenting Facilitator

         In his 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.

         Applicable Law

         A trial 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).

         The 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).

          Analysis

         Niranjan 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, [1] 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.

         Although 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 & 153.6082(e).

         However, 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.

         Additionally, 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 facilitator's email.

         Accordingly, we overrule Niranjan's third issue.

         Evidentiary Rulings

         In his fourth issue, Niranjan contends that the trial court abused its discretion by excluding three exhibits containing emails and instant messages.

         Applicable Law

         Whether 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).

         As 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.

         Analysis

         Niranjan 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.

         Exhibit 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."

         We note 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 619.

         Exhibit 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 ...


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