Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 431st District Court Denton County, Texas
Trial Court No. 16-05722-431
Sudderth, C.J.; Gabriel and Birdwell, JJ.
Gabriel Lee Gabriel Justice
appeal from a final divorce decree, appellant W.D.
(Wendy) 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.
BACKGROUND A. Divorce Petition and Temporary Orders
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.Shortly thereafter, Wendy's attorneys
withdrew from representation, and Wendy proceeded pro se.
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.
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.
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
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.
Bench Trial on the Merits
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.
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.
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.
Appeal and Post-Decree Orders
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. §§
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
was entitled to proceed on appeal without the payment of
court costs. See Tex. R. App. P. 20.1(b).
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).
RIGHT TO FULLY PRESENT CASE
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.
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. .
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
Sitting Trial Judge
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)
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
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. 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.
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 ...