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In re E.M.

Court of Appeals of Texas, Second District, Fort Worth

June 27, 2019

In the Interest of E.M., Minor Child

          On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 14-00945-393

          Before Kerr, Pittman, and Bassel, JJ.


          Dabney Bassel, Justice.

         I. Introduction

         In this suit affecting the parent-child relationship, the record reflects that M.M. (Dad) and D.W. (Mom) are both good parents who are and want to continue to be significantly involved in the life of their daughter, E.M. (Daughter). The record also reflects that Daughter is a healthy, thriving young child. Mom and Dad were divorced in 2015. In 2017, Dad filed a petition to modify the possession order contained in the original decree of divorce to obtain a more equal division of time. After a hearing, the trial court denied the petition and awarded Mom $18, 926.50 in attorney's fees.

         Dad raises three issues on appeal. We affirm.

         II. Background

         The decree entered in Mom and Dad's divorce proceeding followed a three-day bench trial. At the time, they had one child, Daughter, who was not quite two years old. The final decree of divorce appointed Mom and Dad as Daughter's joint managing conservators, awarded Mom the exclusive right to designate Daughter's residence within Denton County and contiguous counties, and provided a custom possession schedule[1] that would automatically change to a standard possession schedule when Daughter began kindergarten. The post-kindergarten possession schedule envisioned Dad would have Daughter on the first, third, and fifth weekends each month; the second and fourth Wednesday each month; and every Thursday. Finally, the decree ordered Dad to pay $1, 710 per month in child support.

         Slightly more than two years after entry of the original divorce decree, Dad filed a petition to modify the possession order. Under Dad's proposed plan, possession would essentially be equalized 50/50, with Dad having possession every Monday and Tuesday, Mom having possession every Wednesday and Thursday, and Mom and Dad alternating possession Friday and weekends. Dad asserted that modification was warranted because since the divorce, Mom had remarried, had moved, and was pregnant, and Daughter was almost school-aged. Dad also contended that the proposed modification was in Daughter's best interest. In an amended pleading, Dad also asserted that he had been promoted in his job, which gave him greater scheduling flexibility to care for Daughter; that he had moved to a "five-star" neighborhood in Frisco, Texas; that Mom had recently given birth to Daughter's new half-sibling and the baby had some complications; and that Mom works 50% more than she did at the time of the prior possession order. Dad also sought to modify or eliminate child support in the event that possession was equalized between him and Mom.

         In a letter dated October 13, 2017, Mom's counsel informed Dad's counsel that Mom would agree to resolve the modification suit by immediately beginning the post-kindergarten standard possession schedule that was going to commence on May 1, 2018. Dad's counsel countered with a letter dated December 22, 2017, which included an "Irrevocable Mediation Settlement Agreement" that offered to settle if Mom would agree to Dad's proposed plan. The parties did not reach an agreement, so they continued to litigate, which included Mom and Dad each sitting for a deposition.

         The modification hearing lasted one day. Mom and Dad each testified, and their counsels testified on the issue of attorney's fees. Each side admitted eight exhibits into evidence. The trial court ruled from the bench that it was denying Dad's modification request because, based on the testimony and evidence, the trial court did not believe that there was a material and substantial change and that modification was not in Daughter's best interest. The trial court also indicated that it would award Mom $18, 926.50 in attorney's fees, which was the amount of attorney's fees Mom had incurred since the date of her settlement offer. On August 30, 2018, the trial court signed a written order denying the modification request, finding that there has been no material and substantial change regarding the circumstances of Daughter, Mom, or Dad that would warrant a modification, and awarding Mom $18, 926.50 in attorney's fees.

         Dad timely filed a request for findings of fact and conclusions of law, and the trial court filed findings of fact and conclusions of law. The relevant findings were that no material and substantial change had occurred warranting modification, that denying Dad's modification request was in Daughter's best interest, that Mom had incurred $18, 926.50 in reasonable and necessary attorney's fees based in part on the nature of Dad's modification request and his conduct, and that good cause existed to award Mom $18, 926.50 in attorney's fees. Dad timely filed a request for additional findings of fact and conclusions of law, seeking numerous findings that were not included in the trial court's original findings. The trial court did not file any additional findings of fact or conclusions of law.

         Although represented by counsel at trial, the trial court granted Dad's counsel's motion to withdraw, and Dad filed a pro se appeal.

         III. The Trial Court Exhibited No Favoritism or Partiality in the Conduct of the Trial

         In his first issue, Dad asserts that the trial court showed favoritism and partiality toward Mom by (1) assisting her in formulating an unobjectionable question following Dad's objection; (2) sustaining Mom's objection to a question as a compound question, only to later acknowledge that it may not be compound but that it was still objectionable; (3) inconsistently ruling on objections by sustaining Mom's objections but overruling Dad's; and (4) failing to file additional findings and conclusions when Dad requested them.

         "All parties have a right to a fair and impartial trial before a neutral judge." Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.-Dallas 2005, no pet). "One of the fundamental components of a fair trial is a neutral and detached judge." Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.-Houston [14th Dist] 2003, pet. denied) (op. on reh'g). Therefore, a judge should not act as an advocate for or adversary toward any party. Id. "To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party." Metier v. Sebek, 892 S.W.2d 20, 39 (Tex. App.-Houston [1st Dist] 1994, writ denied).

         But '"judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,' and opinions the judge forms during a trial do not necessitate recusal 'unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Litekj v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994)). Indeed, "[i]t is only in the rarest circumstances . . . that judicial rulings demonstrate the degree of favoritism or antagonism necessary to show that a fair and impartial trial was not possible." Ellason, 162 S.W.3d at 887. Thus, "[r]ulings with which a party disagrees are best brought as grounds for appeal rather than evidence of judicial bias." Id; cf. In re Davila, 631 S.W.2d 723, 725 (Tex. 1982) ("Appellate courts, through review of proceedings, provide for the correction of most departures from judicial standards."). "[T]o preserve for appellate review a complaint about a trial judge's comments during trial, counsel must object or otherwise bring the complaint to the trial judge's attention so the judge has an opportunity to correct the error." Hoang v. State, 997 S.W.2d 678, 680 (Tex. App.-Texarkana 1999, no pet).

         Nothing in the record even hints that the trial court exhibited or harbored bias or prejudice against Dad. Allegations that a judge has put his or her thumb on the scale should not be made simply because a party disagrees with the judge's rulings. Here, Dad disagrees with the trial court's specific rulings and the result she reached, but the record provides no basis to question the court's impartiality. To demonstrate this fact, we will briefly address each of Dad's complaints.

         A. Dad's First Complaint

         Dad's first complaint is that the trial court "assisted" Mom's attorney in formulating a question that would address Dad's counsel's objection. This occurrence was of so little moment that Dad's counsel did not object to the trial court's action or bring any complaint to the trial court's attention. Thus, Dad did not preserve error for our review. See Matbon, Inc. v. Gries, 288 S.W.3d 471, 490 (Tex. App.-Eastland 2009, no pet.) (holding parties "failed to preserve error on this issue [of judicial favoritism] because they did not object to the [judge's] conduct at the time that it occurred"); Markowitz, 118 S.W.3d at 87 ("A party must object to a court's improper comment when it occurs in order to preserve error for appellate review. . . . Therefore, no error is preserved for our review regarding the trial court's allegedly improper courtroom comments.").

         But even if preserved, the isolated comment does not demonstrate bias or favoritism because a trial court is permitted to ask questions of a witness during a bench trial. Henderson-Bridges, Inc. v. White, 647 S.W.2d 375, 377 (Tex. App.-Corpus Christi 1983, no writ) (holding "the trial judge did not exceed his authority in examining the witnesses"). Indeed, the Beaumont Court of Appeals has specifically affirmed that a trial court's role in questioning witnesses is of particular importance during a bench trial when the best interest of children is at stake:

It is true that the trial judge asked many more questions than either of the attorneys. We, however, find no error. The court is performing its duty by putting competent and material questions to a witness in order to clarify testimony or to elicit testimony that has not otherwise been brought out. It is especially proper, where the court is the trier of fact, in a case involving the best interest of children. The court should have all the facts possible in order to make an intelligent decision. If the attorneys fail to develop the facts, it is the trial judge's responsibility to the children to attempt do so himself. The trial judge did not err.

Trahan v. Trahan, 732 S.W.2d 113, 114-15 (Tex. App.-Beaumont 1987, no writ) (emphasis added) (citation omitted). Thus, the trial court's effort to facilitate the flow of information it needed to resolve this case not only fails to hint at bias or prejudice, it was a perfectly appropriate act.

         B. Dad's ...

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