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In re Marriage of Keys

Court of Appeals of Texas, Sixth District, Texarkana

October 3, 2019

IN THE MATTER OF THE MARRIAGE OF JENNIFER JO KEYS AND SCOTT T. KEYS AND IN THE INTEREST OF B.D.K., A CHILD

          Submitted Date: September 18, 2019

          On Appeal from the 274th District Court Comal County, Texas Trial Court No. C2017-2188C

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess, Justice.

         Jennifer Jo Keys petitioned for divorce from Scott T. Keys. They settled all claims related to the divorce except for the issue of whether and to what extent their seven-year-old child, B.K., would be allowed to associate with the people they were dating. After the trial court entered a permanent injunction preventing Scott from allowing any contact between B.K. and Scott's girlfriend, Scott appealed.[1]

         Scott argues that the trial court erred in granting the injunction because it was unsupported by proper pleadings or any properly admitted evidence. We find that the permanent injunction was properly before the court despite the lack of a technical pleading to support it, that the trial court did not err in its evidentiary rulings, and that the permanent injunction was supported by sufficient evidence. As a result, we affirm the trial court's judgment.

         I. Factual and Procedural Background

         Scott's first argument concerns the pleadings in this case. Jennifer's fill-in-the-blank petition for divorce did not include a request for injunctive relief. In response to her petition, Scott filed a counterpetition for divorce that prayed for a temporary injunction to enjoin Jennifer from "[p]ermitting an unrelated adult with whom [Jennifer] ha[d] an intimate or dating relationship to remain in the same residence with the child between the hours of anytime P.M. and anytime A.M." In her amended petition, Jennifer requested that the trial court issue a similar temporary order prohibiting "an unrelated adult with whom [Scott] ha[d] an intimate or dating relationship [from] remain[ing] in the same residence with the child between the hours of 10:00 P.M. and 8:00 A.M." None of Jennifer's pleadings requested the permanent injunction issued by the trial court.

         However, Jennifer and Scott agreed on temporary orders that provided, "No party shall permit an unrelated adult with whom the party is in a romantic relationship to spend the night in the same home as the child." This is a morality clause. See Matusek v. Twine, No. 03-18-00064-CV, 2019 WL 3137423, at *2 (Tex. App.-Austin July 16, 2019, no pet.) (mem. op.). The agreed temporary order also provided that Scott's girlfriend, "Jennifer Santoro Harrison[, ] shall not be permitted around the child during possession." This agreed temporary order was signed by all parties, their counsel, and the trial judge.

         As a result of a mediated settlement agreement (MSA), Jennifer and Scott settled every aspect of their divorce, with one exception. The MSA said, "The current injunction in temporary orders regarding . . . Harrison and [Jennifer's boyfriend, ] Jack Grimes[, ] shall remain in effect until the court decides whether or not to continue said injunction." The trial court heard those remaining contested issues. The parties disputed the nature of that hearing.

         At the hearing, Scott's counsel stated that Jennifer "would like a permanent injunction - -permanent morality clause." He continued, "We didn't agree to that, so she said she wanted to litigate it." Without hearing any evidence, the trial court granted the "injunction" on Jennifer's counsel's statement that she could not serve Harrison with notice of the hearing. The court stated, "Injunction is granted. If you can't - - if you're having that much difficulty finding [Harrison] and they are still dating her then the injunction is granted." The trial court clarified that it had granted a "permanent morality clause" and, when asked on what grounds, stated it was "[b]ased on the fact that she's been unable to testify." When Scott's counsel argued that there was no evidence to support the permanent injunction, the court said, "[T]hat's not an injunction[, ] it is a moral clause," but then heard evidence from the process server, Jennifer, and Jennifer's daughter from another marriage, K.G.

         Russell Fisher, a process server, testified that he attempted to serve Harrison six different times, twice at her place of work, twice at her apartment, and twice at Scott's residence. Fisher's notes showed that he attempted service on four days within the same week. He admitted that he did not attempt to call Harrison because he did not have her number, did not see anyone in her apartment, and, although he was aware of which vehicle she drove, did not see her vehicle during the times he attempted service. Yet, he believed employees at the dental office where she worked were secreting her because the person that he spoke with there said "very sarcastically" that she was not sure when Harrison would return.

         Over objection that fifteen-year-old K.G. was not disclosed as a witness during discovery and the substance of her testimony was never revealed, K.G. testified that Harrison had contacted her on Instagram. K.G. testified that Harrison made negative comments about Jennifer. When Jennifer introduced screenshots from her cell phone purporting to be an Instagram discussion between Jennifer, Harrison, and K.G., Scott objected that the document was hearsay and did not contain Harrison's name "or any other identifying marks other than some screen name that [had not] been authenticated or proved up." The trial court allowed the screenshots into evidence after finding them admissible by reasoning that Harrison was unavailable under Rule 804(a)(5) of the Texas Rules of Evidence. See Tex. R. Evid. 804(a)(5).

         The comments complained of were made by a person using Instagram username "texas.rda." Aside from testimony that Harrison made negative comments on Instagram, no one testified or established that "texas.rda" was Harrison's Instagram username. The first comment from "texas.rda" to Jennifer's purported Instagram username referenced an earlier comment, possibly made by Jennifer, and said, "I'll take being a whore any day over being a drunk hypocrite . . . . But here is how we are different pop-tart: I'm not a self-centered abusive mother who chooses men, liquor, and bars over my kid. . . . you abandoned [your husband] and your kids for the bar scene." "Texas.rda" then asked Jennifer if she knew where K.G. was. This prompted K.G. to respond that her "amazing mother" knew where she was. "Texas.rda" responded, "I would have to argue with you on the 'amazing' part sweetie. . . . Amazing mothers don't pawn their kids off with school friends for an entire summer so they can shack up with the flavor of the month shooting guns and getting drunk." In response to K.G.'s several responses to this comment, "texas.rda" concluded by saying, "I understand your anger and need to lash out. If my mom always dumped me off in favor of the cute, blonde-haired, blue-eyed daughter instead of me I would act out too."

         Jennifer was the last witness to testify at the hearing. When she was asked whether she was seeking a permanent injunction preventing Harrison's contact with B.K., the trial court reminded her, "I'm only considering a morality clause."

         Jennifer testified that Harrison had contacted her through email, text, and Instagram about her affair with Scott. While Jennifer initially claimed Harrison had a criminal history for forging prescriptions, she later admitted she had no evidence of any criminal history. Jennifer claimed that she derived her speculation of a criminal history from information on Louisiana and Tennessee dental board websites documenting "[Harrison's] ex-husband losing his dental license because [Harrison] was practicing . . . as a dental assistant and not being licensed as well as writing prescriptions regarding both of those." The evidence established that Harrison was currently working in a Texas dental office. Jennifer also claimed that Harrison posted nude photos of herself online, had a child she "gave up," and "decided to raise" another child. Over overruled hearsay and authentication objections, Jennifer also claimed Harrison had social media posts related to marihuana and alcohol, saying, "[S]o I'm a pot head." Jennifer then testified, without objection, that she confronted Scott and said, "['S]o she smokes weed[?'] and his response was ['S]o what[, ] she does['] - - or [']I'm sure she does.[']"

         When asked about Harrison's relationship with B.K., Jennifer admitted that Harrison got along well with B.K., that she sent a message to Harrison thanking her for treating B.K. well, and that she had no evidence to suggest that Harrison had harmed B.K. Jennifer also testified that she knew of no Child Protective Services actions against Harrison. Scott introduced recent photos of Harrison and B.K., both of whom "were smiling."[2]

         After the trial court granted the "morality clause," Scott filed a motion for rehearing when Jennifer insisted that the court had granted a permanent no-contact order at the prior hearing. The trial court granted the motion, and the hearing produced the following transcript documenting the confusion:

[BY SCOTT'S COUNSEL]: No, Your Honor. A no contact order means permanent no contact at all with a child.
THE COURT: If I grant an order it's permanent until I change it. . . . [T]his is the first time in the 15 years I've been on the bench . . . where I have had the discussion about the distinction, if there is one, between a morality clause and an injunction against - - with no contact. The only - - I was - - I thought I was specific in terms of - - I'm thinking - - it's no - - no unrelated adults shall be with the child while that parent is in possession with them, whether that's an injunction or whether that's a morality clause. I don't know that it makes a significant difference what you call it.
[BY SCOTT'S COUNSEL]: You mean overnights or ever? That wouldn't make sense if it was ever.
THE COURT: No, it happens ever. Usually, it's no unrelated adults shall be with the parent who has ...

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