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Mendez v. Delgado

Court of Appeals of Texas, Fourth District, San Antonio

July 17, 2019

Charlene MENDEZ, Appellant
v.
Jeremy DELGADO, Appellee

          From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-10408 Honorable Karen H. Pozza, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          Irene Rios, Justice.

         Charlene Mendez appeals the trial court's judgment in a divorce action. In four issues, Mendez argues the trial court abused its discretion by (1) denying her motion for continuance, (2) proceeding to trial without the presence of the Office of the Attorney General, (3) precluding the amicus attorney from complying with her obligations under the Texas Family Code, and (4) appointing her former husband, Jeremy Delgado, sole managing conservator of their sixteen-month-old child, C.S.D. We affirm.

         Background

         Mendez and Delgado were married in Bexar County, Texas. About ten months later, Mendez gave birth to C.S.D. When C.S.D. was only eight months old, Delgado filed a petition for divorce and Mendez filed a counter-petition. The trial court issued temporary orders regarding C.S.D.

         In its initial temporary orders, the trial court appointed Mendez and Delgado temporary joint managing conservators of C.S.D. and restricted C.S.D.'s residence to Bexar County. Delgado, who was working in Las Vegas, Nevada, was granted possession of C.S.D. on weekends when he came to San Antonio, Texas, and Mendez was granted possession of C.S.D. at all other times. The trial court appointed an amicus attorney to investigate and report to the trial court concerning C.S.D.'s best interest. The trial court also ordered both Mendez and Delgado to participate in psychological evaluations.

         After reviewing the results of the psychological evaluations, the trial court modified its temporary orders to limit Mendez's contact with C.S.D. to supervised visits. These visits were to be monitored by a non-relative third party, either Kids Exchange or Guardian House. Under the modified temporary orders, C.S.D. was required to live with his paternal grandmother in San Antonio, and Delgado was granted possession of C.S.D. on weekends and other times when he was in San Antonio. Additionally, if Delgado was unable to travel to San Antonio for a weekend, C.S.D was permitted travel to Las Vegas for a weekend visit with Delgado.

         The case was set for a final trial on the merits. Five days before trial, Mendez filed a motion for continuance, stating she was "in therapy and making substantial progress and recovery," but was seeking an indefinite continuance of the trial to "allow her a full recovery." Additionally, Mendez filed a motion for further modification of the temporary orders.

         On the day of trial, Mendez announced "not ready" for trial, but "ready" on her motion to further modify the temporary orders. Mendez's counsel informed the trial court that Mendez had "some mental issues," but that she had been on medication, was in therapy, and was making "great strides." However, counsel stated Mendez "needs a little bit more help" and "requiring her to go to court today to finalize this matter, for a 16-month old baby, is not in the best interest of the child." The trial court asked counsel how much additional time Mendez needed, but counsel could not say. The trial court denied the motion for continuance.

         At trial, Delgado, Mendez, and several other witnesses testified. The evidence showed that Mendez and Delgado had met and married in Bexar County, Texas. After the couple married, Delgado obtained a promotion at work and relocated to Las Vegas, Nevada. Mendez remained in San Antonio until after C.S.D.'s birth, and then Mendez and C.S.D. joined Delgado in Las Vegas.

         While in Las Vegas, Mendez started exhibiting troubling behavior. Delgado testified that Mendez "started to get really violent with me, really paranoid, constantly thinking is this the right child, and then just sometimes violent in the middle of the night, and just at random times whenever she would get angry, she would get violent." Mendez physically attacked Delgado-hitting him, scratching him, grabbing him, pulling his hair, and pushing him. On multiple occasions, Mendez attacked Delgado while he was holding C.S.D. According to Delgado, Mendez "was not afraid to push me down with the child in my arms[] or try to take a swing at me with the child in my arms." After several of these attacks, Delgado called the police and Mendez was arrested twice. Delgado further testified that when Mendez became aggressive she "didn't care about anything;" "she didn't care if she broke something, she didn't care if she hurt someone, she didn't care what the cops said." One day, while Delgado was at work, Mendez took C.S.D., boarded a bus, and returned to San Antonio. Mendez did not tell Delgado that she and C.S.D. were leaving Las Vegas.

         After the divorce action was filed and temporary orders were issued, Mendez was diagnosed with schizophrenia and was prescribed medication. According to Mendez's parents, Mendez benefitted from the medication because it made her more focused. Notwithstanding her improved condition, Mendez rarely exercised visitation with C.S.D. under the modified temporary orders, which required Mendez to initiate her supervised visits with C.S.D. In a three-month period, Mendez initiated and attended only two visits with C.S.D.

         After hearing all the evidence, the trial court granted the divorce and appointed Delgado sole managing conservator and Mendez possessory conservator. The trial court filed ...


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