Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 442nd District Court Denton County, Texas
Trial Court No. 14-00945-393
Kerr, Pittman, and Bassel, JJ.
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.
raises three issues on appeal. We affirm.
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 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.
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.
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.
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
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.
represented by counsel at trial, the trial court granted
Dad's counsel's motion to withdraw, and Dad filed a
pro se appeal.
The Trial Court Exhibited No Favoritism or Partiality in the
Conduct of the Trial
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.
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).
'"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).
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 First Complaint
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
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
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