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In re M.O.

Court of Appeals of Texas, Sixth District, Texarkana

June 19, 2019

IN THE INTEREST OF M.O. AND J.A.O., JR., CHILDREN

          Submitted: May 30, 2019

          On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 11-0340

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess, Justice.

         After Emma Wolf and James Oney filed competing petitions to modify the trial court's previous Order in Suit to Modify Parent-Child Relationship, the trial court held a hearing on the petitions and granted Wolf's petition. On appeal, Oney complains that the trial court abused its discretion by (1) denying his motion for new trial, (2) authorizing the amicus attorney for the children to engage in ex parte communications, and (3) failing to file findings of fact and conclusions of law. He also asserts that the trial court erred by considering an ex parte Child Protective Services (CPS) investigation report during the proceedings. Because we find that (1) the trial court did not abuse its discretion by denying Oney's motion for new trial, (2) the trial court's modification order did not authorize ex parte communications, (3) sufficient evidence supports the trial court's modification order, and (4) Oney's complaint regarding a CPS investigation report is without merit, we will affirm the trial court's judgment.

         I. The Denial of Oney's Motion for New Trial Was Not An Abuse of Discretion

         Oney first complains that the trial court abused its discretion when it denied his motion for new trial. He argues that he was entitled to a new trial because the trial court held a final hearing without notice in violation of Rule 245 of the Texas Rules of Civil Procedure. Specifically, he argues that the notice of hearing stated that the trial court would hear Oney's motion for temporary orders, but when the parties appeared, the trial court held a final hearing instead.

         A. Standard of Review

         We review a trial court's denial of a motion for new trial for abuse of discretion. Storck v. Tres Lagos Property Owners Ass'n, Inc., 442 S.W.3d 730, 741 (Tex. App.-Texarkana 2014, pet. denied) (citing In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam)). The trial court's decision may not be overturned unless it "'acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles.'" Id. at 741-42 (quoting El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 368 (Tex. App.-Dallas 2005, no pet.) (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991))). In our review, every reasonable presumption is indulged in favor of the trial court's ruling. Id. at 742 (citing El Dorado Motors, Inc., 168 S.W.3d at 368).

         In contested cases, a trial court may set the case for trial, but must give reasonable notice of at least forty-five days, or by agreement of the parties. Tex.R.Civ.P. 245. While this rule is mandatory, any "[e]rror resulting from a trial court's failure to provide parties proper notice under Rule 245 is waived if a party proceeds to trial and fails to object to the lack of notice." In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex. App.-Texarkana 2000, no pet.) (citing In re J. (B.B.)M., 955 S.W.2d 405, 408 (Tex. App.-San Antonio 1997, no pet.); State Farm Fire & Cas. Co. v. Price, 845 S.W.2d 427, 432-33 (Tex. App.-Amarillo 1992, writ dism'd by agr.)).

         B. Analysis

         In this case, the record shows Wolf filed her Petition to Modify Parent-Child Relationship (Petition to Modify) on April 20, 2018. Among her requested modifications, Wolf sought that Oney's visitation with the children be supervised due to family violence and that the court enjoin Shelly Oney, Oney's wife, from being alone with the children. She also sought reimbursement for insurance premiums, temporary orders and a temporary injunction, and a permanent injunction. In response, Oney filed a Petition for Writ of Habeas Corpus, a Motion for Enforcement of Possession and Access (Motion for Enforcement), and an Original Answer and Counter-Petition in Suit Modifying the Parent Child Relationship (Counter-Petition). The trial court signed orders setting a hearing on July 25, 2018, for Oney's Motion for Enforcement and for temporary orders requested in his Counter-Petition. No order setting a hearing on Wolf's Petition to Modify appears in the clerk's record.

         Nevertheless, when the trial court asked the parties at the beginning of the July 25 hearing for their announcements, Wolf responded that she was appearing on her Petition to Modify, and Oney announced that he was there on his Petition for Writ of Habeas Corpus, his Counter-Petition, and his Motion for Enforcement. Without objection to proceeding on Wolf's Petition to Modify, the trial court took notice of its file, and the parties then discussed all of the issues in the case, including those modifications requested only in Wolf's Petition to Modify. The trial court then recessed the hearing and instructed the parties to confer in an attempt to resolve the issues through agreement.

         When the parties returned, and after some discussion, the trial court stated that the parties could proceed to present evidence on "the stepmom issue," which related to Wolf's Petition to Modify. Oney called two witnesses, the CPS investigator and Oney's mother, to, inter alia, refute Wolf's anticipated testimony that Shelly was a danger to the children. Oney then called Wolf to testify. Prior to Wolf's testimony, the parties informed the trial court that they had agreed on all issues, except whether Shelly could be with the children. Wolf then testified regarding three instances in which Shelly had used corporal punishment on the children that caused bruises that were present for at least two weeks.

         After Wolf's testimony, the parties read their agreement into the record, then informed the trial court that the only issue was whether Shelly would be allowed around the children. The trial court and the parties then entered into an extended discussion in an attempt to find a practical solution for Oney to exercise his visitation without Shelly being present. After conferring separately with the children, the trial court informed the parties that Oney's visitation with J.A.O., Jr., would take place at Oney's mother's house and that Shelly could not be present, and that Shelly could not be alone with M.O. Without objection, the trial court informed the parties that the order she issued would be a final order.

         We believe this record clearly demonstrates that Oney went forward with the hearing on Wolf's Petition to Modify, called witnesses to contest the only issue contained in the Petition to Modify that was not resolved by agreement, and never objected to a lack of notice. Therefore, Oney waived any complaint for lack of notice under Rule 245 and was not entitled to a new trial. See Parker, 20 S.W.3d at 818. Consequently, we find that the trial court did not abuse its discretion when it denied Oney's motion for new trial. We overrule Oney's first issue.

         II. The Modification Order Did Not Authorize Ex Parte Communications

         A. Factual and Procedural Background

         Oney's third issue complains that the trial court abused its discretion by authorizing the amicus attorney for the children to make ex parte communications to the trial court. The bulk of Oney's brief on this issue complains of a discussion at the July 25 hearing in which the trial court indicated that the amicus attorney would continue to communicate with the children and report back to the trial court for a period of time. In one cryptic citation, Oney also refers to the Order in Suit to Modify Parent-Child Relationship (the Modification Order). The Modification Order provided that the amicus attorney was to continue her duties for six months after the entry of the order and that, "[w]ithin that six[-]month period, IT IS ORDERED that [the amicus attorney] shall be required to have contact with the children and send reports to the Court." We presume Oney also complains that this provision authorizes ex parte communications with the trial court by the amicus attorney.

         In both his original and reply briefs, Oney claims that ex parte communications took place prior to the entry of the Modification Order and that he was harmed by the inclusion of certain other provisions in the Modification Order as a result of ...


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