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Adams v. Adams

Court of Appeals of Texas, First District

April 16, 2019

CECIL ADAMS, Appellant
v.
MAXINE ADAMS, Appellee

          On Appeal from the 311th District Court Harris County, Texas Trial Court Case No. 2017-00441

          Panel consists of Justices Keyes, Higley, and Landau.

          MEMORANDUM OPINION

          EVELYN V. KEYES JUSTICE.

         Appellant, Cecil Adams, challenges the trial court's decree of divorce terminating his marriage to appellee, Maxine Adams. In twelve issues, Cecil complains that: (1) the trial court erred in denying his motion for new trial on the ground that court officers allegedly concealed a record of testimony and violated his rights to a fair trial; (2) the trial court abused its discretion "by not giving [him] a standard possessory custody order," thus violating his "parental rights pursuant to Texas Family Code 151.001 and help[ing] aid parental alienation"; (3) the trial court erred in not hearing the motion for new trial and instead referring the case to the associate judge in violation of Texas Family Code section 201.104(d); (4) the trial court abused its discretion in making findings of family violence "and not correcting temporary and final order[s] in violation of [the] Texas Code of Judicial Conduct that requires judges to consider all evidence in the case in making their determination, not just the evidence that supports the finding"; (5) the trial court erred "in not granting [his] recusal motion"; (6) the trial court abused its discretion by reinstating the case even though Maxine failed to present evidence that she adhered to the scheduling order; (7) the trial court erred in "sustaining jury findings without any admitted evidence of cruelty"; (8) the trial court erred and abused its discretion in its division of the community estate; (9) the trial court erred in "making findings of cruelty" because Maxine failed to present credible evidence to support such findings; (10) the trial court erred in granting the divorce because there was no evidence to support any ground for divorce recognized by Texas law; (11) Maxine violated his Fourth Amendment rights to privacy by judicially admitting to tracking his car by GPS; and (12) the trial court erred in failing to hear and rule on "properly set motions pursuant to Texas Rules of Civil Procedure 21."

         We affirm.

         Background

         Cecil and Maxine Adams were married in December 2000. Over the next several years, Cecil and Maxine had four sons born in 2004, 2006, 2007, and 2009.

         On January 4, 2017, Maxine filed her petition for divorce from Cecil asserting that the parties had ceased living together as husband and wife in December 2016 and alleging that the marriage had become insupportable. Maxine made allegations of infidelity, financial fraud and irregularities, and other concerns that occurred between Cecil and herself, and she sought full custody of the couple's four minor sons, child support, and a division of the marital estate. Cecil answered by denying Maxine's allegations, and he also sought full custody of the minor children.

         On February 15, 2017, the trial court held a hearing before entering temporary orders.[1] A partial record of this hearing is contained in the appellate record. Both parties appeared pro se and testified regarding the breakdown of their marital relationship. Among other testimony, Maxine related incidents of domestic violence by Cecil against her and two of the children. Cecil denied that violence had occurred, testifying that he had attempted to stop a fight between two of his sons but ended up striking one of them in the eye with his fist, leaving a bruise, because he was trying to protect his younger child.

         On March 10, 2017, the trial court signed temporary orders based on the testimony at the February 15, 2017 hearing. The trial court found that:

(1) family violence has occurred within two years of filing the lawsuit in this matter, (2) it is not in the best interest of the child[ren] to name both parents Joint Managing Conservators, (3) [Maxine] shall be named Sole Managing Conservator, and (4) [Cecil] shall be named Possessory Conservator.

         The trial court also found in its temporary orders that awarding Cecil a standard possession order was not in the children's best interest. The trial court awarded Cecil supervised visitation for two hours every Tuesday evening, three hours of supervised visitation on the second and fourth Saturdays of each month, and three hours of supervised visitation on the second and fourth Sundays of each month. The trial court also ordered additional times for FaceTime and phone conversations between Cecil and the children. The trial court made further temporary orders regarding some property and assets pending final resolution of the divorce, and it ordered that Cecil pay child support to Maxine in the amount of $772.93 each month.

         On April 4, 2017, Cecil filed an emergency motion for the trial court to reconsider his visitation rights. Cecil relied in part on a "Notice of Finding of CPS Investigation" dated March 28, 2017. This notice stated that the allegations that he abused two of his sons was "ruled out" by CPS and the investigation was closed. Cecil argued that because "all allegations have been cleared it is reasonable for this court to allow [him] . . . to have at minimum the standard possession order concerning visitation rights." He also alleged that there were reasons that he was not able to spend time with his children during his court-ordered visitation, including difficulties with his own schedule and difficulties between Maxine and himself. The record does not contain a ruling by the trial court on this motion.

         On November 13, 2017, Cecil filed a notice of intent to file a writ of mandamus in the trial court, but it does not appear from the record in this case that he ever filed the mandamus petition challenging these temporary orders of the trial court.

         The case proceeded to a trial before a jury on December 11 and 12, 2017. Cecil filed an incomplete reporter's record of the trial proceedings, including only the portions of the trial proceedings in which he objected to Maxine's use of certain evidence from the February 15, 2017 temporary orders hearing and portions of Maxine's testimony regarding the official investigations into the allegations of child abuse.

         The clerk's record, however, contains the jury's verdict. The jury was asked:

Has there been any intentional use of abusive physical force, or evidence of sexual abuse, by the RESPONDENT Cecil Adams directed against his spouse, against a parent of the children or against any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit?

         The jury answered, "YES." The jury was also asked:

Has the RESPONDENT Cecil Adams engaged in any family violence meaning, an act by a member of a family against another member of the family that is intended to result in physical harm during the two years preceding the date of the filing of the suit or during the pendency of the suit?

         The jury answered, "YES." The jury also believed that Maxine should be appointed as the sole managing conservator of the minor children and that Cecil should be a possessory conservator.

         The remaining issues in the divorce case were addressed in a bench trial that occurred on December 13, 2017. There is no reporter's record of these proceedings.

         On December 18, 2017, Cecil filed a motion for new trial asserting violations of various constitutional rights, penal code violations, and other issues, arguing:

New evidence will show the court abuse[d] it[s] discretion, violated [his] 4th amendment rights to a fair trial, violated [his] parental rights with respect to temporary orders, prejudice[d] the trial by not adhering to the Texas Code of Judicial Conduct and ultimately aided [Maxine] in parental alienation which is not in the best interest of the Adams' four minor [children] and not in the best interest of fair justice.

         Cecil presented evidence that he had requested a copy of the transcript of the February 15, 2017 hearing on temporary orders but was told by the court reporter that no transcript was taken. However, because Maxine introduced excerpts of the transcript at trial, Cecil argued that the transcript was withheld and concealed from him due to bias. Cecil also argued in his motion for new trial that the trial court did not take proper notice of DFPS's finding from March 2017 that "ruled out" the allegations that he physically abused two of his sons. Cecil argued that, because of this finding by DFPS, the trial court abused its discretion in entering findings of family violence and curtailing his visitation with his sons in the temporary orders.

         On January 9, 2018, the trial court rendered its final decree of divorce. The decree found that "the parties entered into a Partial Mediated Settlement Agreement (the "MSA") on December 7, 2017," and it made the necessary findings to render judgment according to the terms of the MSA. The trial court also found that the parties had entered into certain stipulations on December 11, 2017, regarding child custody issues, including that the trial court should appoint one parent as sole managing conservator and the other as possessory conservator and making certain plans regarding child support obligations.

         The trial court found that the marriage had become "insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation." The trial court aslo found Cecil at fault on the ground of cruel treatment.

         Regarding conservatorship of the children, the trial court found that the parties tried the matter to a jury in part and to the bench in part. The trial court recognized the jury's findings that Cecil had engaged in family violence and used force against a family member and its findings determining that Maxine should be named sole managing conservator of the children. It found that such findings were in the children's best interests and named Maxine as the children's sole managing conservator and Cecil as their possessory conservator. The trial court ordered in its final decree that Cecil have possession and access as set forth in the March 10, 2017 temporary orders, with possession and access to be supervised at all times, and the trial court again set out the terms of Cecil's possession in the final decree-two hours every Tuesday, three hours on the second and fourth Saturday and Sunday of each month, and two hours on each birthday. The trial court further ordered that Cecil's possession and access not include the provisions for telephonic and FaceTime communications set out in the temporary orders. The trial court also ordered child support as agreed to in the MSA.

         Regarding division of the marital estate, the trial court stated in its decree that the estate was divided according to the parties' stipulations and in accordance with their agreement in the MSA.

         Regarding the temporary orders, the final decree stated, "All obligations and duties imposed by the Temporary Orders signed on March 10, 2017 except as expressly stated in this Final Decree of Divorce are discharged on the date this Final Decree of Divorce is signed."

         Also on January 9, 2018, the trial court signed an order on division of community property regarding the parties' interest in settlement proceeds from unrelated litigation, a possession order, and various qualified domestic relations orders and other orders implementing its final decree. The possession order found that the supervised possession by Cecil was in the children's best interest, that a standard possession order was "not appropriate or workable under the circumstances," and that the supervised possession order was "not more restrictive than necessary to provide for the safety of the children." The order repeated the finding that Cecil had committed family violence within the two years preceding the filing of the suit. This order again awarded Cecil supervised visits every Tuesday for two hours; three hours of visitation at his church on the second and fourth Sundays of each month; three hours of supervised visitation on the second and fourth Saturdays of each month; and two hours of supervised visitation with each child on the children's birthdays.

         On January 16, 2018, Cecil filed a document styled "Additional Violations and Judicial Misconduct of Officers of the Court Pursuant to Texas Penal Code 39.02 and Texas Penal Code 39.03 and Notice to Assistant Attorney General Thomas Singleton and Attorney General Ken Paxton to report judicial misconduct Pursuant to Texas Disciplinary Rules of Professional Conduct 8.03(b)." He again argued that an earlier denial of a protective order and CPS's notice that the allegations of abuse were ruled out were dispositive of the issues between himself and Maxine and that the trial court's subsequent child custody rulings violated his rights as a parent. He also again raised his complaints regarding the availability of the February 15, 2017 hearing transcript. He asked for the following relief: that the trial court "sign an order of contempt" against Maxine and sign temporary orders awarding him full custody of the children; that the trial court "report judicial misconduct of court officials pursuant to Texas Disciplinary Rule of Professional Conduct 8.03"; and that the trial court declare a mistrial due to the trial court's violations of various provisions of the Penal Code, Government Code, Code of ...


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