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W.D. v. R.D.

Court of Appeals of Texas, Second District, Fort Worth

June 27, 2019

W.D., Appellant
R.D., Appellee

          On Appeal from the 431st District Court Denton County, Texas Trial Court No. 16-05722-431

          Before Sudderth, C.J.; Gabriel and Birdwell, JJ.


          Lee Gabriel Lee Gabriel Justice

         In this appeal from a final divorce decree, appellant W.D. (Wendy)[1] asserts in three issues that the trial court abused its discretion by ordering her to pay child support, by conditioning her supervised visitation on her up-front payment of all fees, by denying her request for spousal maintenance, and by failing to allow her to present her full case for possession and access at trial. We conclude that the trial court did not abuse its discretion and affirm the final divorce decree.

         I. BACKGROUND A. Divorce Petition and Temporary Orders

         In 2016, appellee R.D. (Rob) filed a divorce petition, seeking the dissolution of his twelve-year marriage to Wendy. See Tex. Fam. Code Ann. § 6.402. They had four children, ranging in age from three to eight. Rob averred that Wendy had moved with the children and had concealed their location in July 2016, interfering with his possessory rights. Wendy filed a counterpetition, alleging that Rob had "a history or pattern of committing family violence" between 2014 and 2016 and requesting that he be denied access to the children. The trial court entered temporary orders on September 26, 2016, appointing Rob and Wendy temporary joint managing conservators of the children and ordering Rob to pay child support and spousal maintenance, to provide medical insurance for the children, and to complete a batterers intervention program no later than May 31, 2017. See id. §§ 6.502, 105.001. It further ordered the parties to attend mediation no later than ten days before the final trial. See id. § 153.0071(c). In October 2016, the trial court again entered temporary orders with similar provisions but added a requirement that Rob and Wendy attend a "Parallel parenting/Conflict Resolution" course at Rob's expense.[2]Shortly thereafter, Wendy's attorneys withdrew from representation, and Wendy proceeded pro se.

         In 2017, Rob noticed that Wendy was not feeding the children, that the children had missed several days of school since September, and that Wendy was seeking unnecessary medications for them. Further, Wendy would not surrender possession of the children to Rob on November 2, 2017, leading Rob to seek a temporary restraining order (TRO) the next day. The trial court entered a TRO that removed the children from Wendy and placed them with Rob until a hearing could be held. See id. §§6.501, 105.001.

         At the November 15, 2017 hearing on Rob's application, a visiting judge heard evidence that the oldest three children had severe disciplinary and violence issues at school and had medical conditions such as ADHD and autism. Wendy also testified that eviction had been sought against her three times in the last four months, that she had not received the last two child-support payments, and that she was unemployed.

          Wendy reported that when the children were with Rob, they returned with injuries. This led to the Department of Family and Protective Services' (DFPS) involvement, but it concluded that there was no reason to believe Wendy's reports. Wendy filed several police reports with similar, unfounded allegations. When a therapist observed one of the older children at school, he immediately came up to the therapist and said, "[M]ommy says the Judge says I can't be with daddy. We can't be with daddy because daddy hurts us." The therapist testified that such an unprompted outcry is not "normal" for a child that age or for a child on the autism spectrum. The children told the therapist that when they were with Wendy, they were frequently hungry. The therapist concluded that the children were not safe with Wendy but would be safe with Rob. Since the children had been in Rob's sole possession, their behavior improved.

         The visiting judge signed a temporary injunction on January 22, 2018 naming Rob temporary sole managing conservator and Wendy temporary possessory conservator of the children with continued DFPS monitoring. The visiting judge also (1) ordered Wendy and the children to complete a psychological evaluation, (2) terminated Rob's child-support obligation, (3) allowed Wendy weekly supervised visits with the children, (4) ordered Rob to pay for a child-custody evaluation, (5) continued the previously ordered spousal maintenance and medical support, and (6) ordered Rob and Wendy to split the cost of any unreimbursed healthcare expenses. See id. §§ 6.502, 105.001. At the close of the hearing, Wendy's only questions for the court were whether she would continue to receive spousal maintenance and whether she would be paid for Rob's past missed child-support payments.

         B. Bench Trial on the Merits

         Rob's divorce petition was set for a May 15, 2018 final trial on the merits before the court. The trial date was agreed to by both Wendy and Rob shortly after the visiting judge signed the temporary injunction-almost four months before the trial date. Wendy did not attend the court-ordered mediation in early May, cancelling at the last minute, "due to medical issues." She would not cooperate with the mediator's attempts to reschedule. At trial, Wendy continued to represent herself and she arrived late.

         Rob testified that his sole managing conservatorship should be continued because Wendy "was emotionally and physically harming or neglecting the children as a means to get attention for herself or money." Rob stated that the children had to start therapy for past psychological abuse they received during Wendy's possession and for their behavioral and emotional issues, including post-traumatic stress disorder (PTSD). Wendy had also put the children on multiple, unnecessary medications and did not pay the children's medical bills even though Rob had been reimbursing her for half of those costs.

         The trial court rendered final orders in a memorandum on July 26, 2018, and signed the final divorce decree on September 12. The decree (1) ordered Wendy to pay child support based on the finding that she had $1, 134.87 in net monthly resources; (2) ordered Mother to pay medical-support reimbursement; (3) ordered no spousal maintenance; (4) appointed Rob as the children's sole managing conservator; (5) appointed Wendy as the children's possessory conservator; (6) limited Wendy to supervised visitation with restricted electronic contact; and (7) ordered Wendy to pay the costs of supervised visitation subject to Rob's later reimbursement of half of the costs. The trial court found that these conservatorship determinations were in the children's best interest. See Tex. Fam. Code Ann. §§ 153.002, .072 No party requested findings of fact or conclusions of law. See Tex. R. Civ. P. 298.

         C. Appeal and Post-Decree Orders

         After Wendy appealed the final decree, Rob filed a petition to modify the parent-child relationship and a TRO application, requesting that the trial court end Wendy's possession, access, and communication with the children because their mental health and behavior had deteriorated since Wendy had been granted electronic access and supervised visitation in the final decree. See Tex. Fam. Code Ann. §§ 156.006, .101. On October 22, the trial court entered a TRO that prohibited Wendy from communicating with or being near the children. See id. §§ 105.001, 156.006.

         Wendy filed an indigency statement after she filed her notice of appeal, which the court reporter contested. See Tex. R Civ. P. 145. The trial court held a hearing on November 30, at which neither Rob nor his counsel appeared, and found that

          Wendy was entitled to proceed on appeal without the payment of court costs.[3] See Tex. R. App. P. 20.1(b).

         On December 17, 2018, and after holding a hearing on Rob's TRO application, the trial court signed a temporary injunction, denying Wendy any right to possession of or access to the children "to prevent irreparable harm" to them. See Tex. Fam. Code Ann. §§ 109.001, 153.072, 156.006, 156.101(a).


         In her appeal, Wendy relies on a comment made by the visiting judge at the November 15, 2017 hearing on Rob's first temporary-injunction application and on isolated comments by the sitting judge at the May 15, 2018 bench trial to assert that she was denied a meaningful opportunity to present her case for support and custody. For the following reasons, we disagree and overrule issue three.

         A. Visiting Judge

         As part of her argument, Wendy points to the visiting judge's comments at the conclusion of the hearing on Rob's application for a temporary injunction before closing arguments were made:

THE COURT: [Counsel for Rob], I do see that there was a requirement in [the temporary orders] for a BIPP program.
[Counsel for Rob]: For batterers' intervention.
THE COURT: Why was that ordered? Did [the sitting judge] order that at some point?
[Counsel for Rob]: Your Honor, I have no idea. . . .
THE COURT: Right, okay.
[Wendy]: I can testify to that.
THE COURT: I don't need anything else from you right now, ma'am. I'm gonna look at the record here and see what I can find. Okay, I'm ready to hear [closing] argument. . . .

         We disagree that this comment shows the visiting judge failed to allow Wendy to fully present her case at the hearing. The visiting judge expressly stated that she would consider the entire record, including the evidence Wendy adduced during the hearing. Wendy was given a sufficient opportunity to present evidence regarding the issues presented in Rob's application, and the visiting judge's rebuff of Wendy's attempt to continue testifying after the close of evidence did not deny her the fundamental right to a reasonable opportunity to be heard. See City of Horn. v. Horn. Lighting <& Power Co., 530 S.W.2d 866, 869 (Tex. App.-Houston [14th Dist] 1975, writ refd n.r.e.) (recognizing trial court may "impose reasonable limitations upon a litigant's presentation of evidence in a temporary injunction hearing" as long as limits do not "deprive a party of the right to offer any evidence").

         B. Sitting Trial Judge

         Wendy also points to several comments by the sitting trial judge at the final trial on the merits regarding her attempts to continue the trial and to admit evidence. She divides the comments into two categories in her appellate brief: (1) "Denial of requests for additional time" and (2) "Evidentiary rulings."

         1. Continuance Requests

         First, Wendy argues that she could not meaningfully present her case for possession and access because the trial court denied her requests to continue the trial based on her health issues and based on her need to prepare her cross-examination of one of Rob's witnesses.

         Wendy was not present in court when the final trial began on May 15, 2018, and the trial judge noted that she had also failed to appear for mediation as ordered. The trial judge explained that Wendy had emailed the court earlier that day, seeking a continuance of the trial:

[W]hile they do not appear in the Court's record, [Wendy] has e-mailed this Court through the court administrator today attempting to communicate with the Court and provide documents that would purport to be excuses from a physician concerning . . . [Wendy], but they have not been filed as a motion for continuance.[4] There's been no proper motion for continuance filed with the Court, and it's my understanding that [Rob] is opposed to continuance.
Frankly, the Court is opposed to continuance because of the unreasonable length of time this case has been pending and the fact that this trial setting was agreed to by the parties. There being no authenticated and properly filed motion for continuance alleging any basis for [Wendy's] nonappearance, we will proceed with the trial.

         Wendy arrived late during Rob's testimony regarding the best interest of the children and Wendy's past failure to pay medical bills as ordered. Wendy cross-examined Rob, the headmaster at three of the children's school, and the children's therapist. She also testified in response to questions from Rob's counsel. When Rob's ...

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